Glaser v. State
| Decision Date | 01 November 1932 |
| Docket Number | No. 26099.,26099. |
| Citation | 204 Ind. 59,183 N.E. 33 |
| Parties | GLASER v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Lake Circuit Court; Miles Norton, Judge.
Paul P. Glaser was convicted of violating Burns' Ann. St. 1926, § 2946, and he appeals.
Reversed, with directions.Harry Long, Robt. H. Moore, Glenn Harris, Marguerite Glaser, Moore, Long, Chudom & Johnson, and Robert O. Graves, all of Gary, for appellant.
Jas. M. Ogden, Atty. Gen., and Merl M. Wall, Asst. Atty. Gen., for the State.
In the criminal court of Lake county appellant and another were charged by affidavit in one count with violating section 2946, Burns' 1926, and upon that court's own motion the venue of the cause was changed to the Lake circuit court, where, while it was in vacation, he was tried before a jury and convicted. On appeal to this court the questions relied upon for reversal of the judgment below are covered by the assignment of errors challenging the action of the trial court in overruling his motion to quash and in overruling his motion for a new trial.
The affidavit alleges that another and appellant “did then and there unlawfully, feloniously, falsely and fraudulently make, forge and counterfeit, and did then and there unlawfully, feloniously, falsely and fraudulently cause to be falsely made, forged and counterfeited a certain recognizance bond purporting to have been made and executed by Sophia Vinovich and Nick Vinovich for the appearance of one Mary Cherry on the 28th day of May, 1930, in the Lake Criminal Court, to answer a charge of illegal voting.” A copy of the bond alleged to have been forged and caused to be forged was incorporated into the affidavit.
The grounds relied on for quashing the affidavit are: Insufficient facts to constitute a public offense; failure to state the offense with sufficient certainty; and that more than one distinct offense is charged in a single count. The affidavit follows closely the language of the statute, and must be regarded as sufficient, unless it must be said that it is bad for duplicity.
The statute, section 2946, supra, provides that “whoever falsely makes, or assists in making *** forges, *** or causes to be falsely made, *** forged, *** any record or authentic matter of a public nature, *** bond, covenant, writing obligatory, *** or any other instrument in writing, with intent to defraud any person, body politic or corporate, or utters or publishes as true any such instrument or matter, knowing the same to be false, defaced, altered, forged, counterfeited, *** with intent to defraud any person, body politic or corporate, shall, on conviction, be imprisoned,” etc.
The instrument alleged to be forged, if genuine, would create an obligation, and therefore sufficient upon which to base a charge of forgery. State v. Hazzard, 168 Ind. 163, 80 N. E. 149. To constitute a good indictment or affidavit charging forgery, the party intended to be defrauded must be alleged, and in this case the affidavit names the state of Indiana as such party.
Counsel for appellant earnestly insist that the one-count affidavit at bar charged more than one offense, and for that reason it is duplicitous. The law applicable to criminal pleading in this jurisdiction forbids the joining of “separate and distinct offences, created by separate and distinct sections of the statute, and separate statutes,” or offenses committed at different times, in the same count. Davis v. State, 100 Ind. 154, 159;Joslyn v. State, 128 Ind. 160, 27 N. E. 492, 25 Am. St. Rep. 425. For a well considered case involving this question, see Fletcher v. State, 49 Ind. 124, 19 Am. Rep. 673. But where, as here, the offense charged consists of one or more of the forbidden acts committed at the same time and included in a single section of the statute, and the punishment is the same for one or all of the offenses named, a single count charging more than one conjunctively will not be bad for duplicity. State v. Schipper, 193 Ind. 595, 141 N. E. 330;Scheerer v. State, 197 Ind. 155, 149 N. E. 892;Brogan v. State, 199 Ind. 203, 156 N. E. 515; Bishop, New Criminal Proc. vol. 1, (2d Ed. by Underhill) § 436.
The precise question, in principle, now under consideration was before this court in Selby v. State, 161 Ind. 667, 672, 69 N. E. 463, 465, and Bruner v. State, 201 Ind. 33, 164 N. E. 272, and in both cases it was held that a charge of forgery and knowingly uttering a forged instrument may be pleaded in a single count when tied together conjunctively, when both offenses are charged “as constituting a single transaction, and for which but a single penalty can be exacted.” The pleading at bar is sufficient to withstand a motion to quash.
In support of his motion for a new trial, counsel for appellant first insists that the Lake circuit court was without jurisdiction to try this cause, for the reason that the Lake criminal court failed to find that its docket was congested. The General Assembly of this state in 1919 (Acts 1919, c. 187, p. 748) established a criminal court in Lake county, and by virtue of the law then in force it was vested with “original exclusive jurisdiction, within the county, of all crimes and misdemeanors, except where jurisdiction is by law conferred on justices of the peace.” Acts 1881, Sp. Sess., c. 34, p. 111, § 4, section 1685, Burns' 1926. Furthermore, by statute (Acts 1929, c. 115, p. 339, § 1, section 1686.1, Burns' Supp. 1929), “the judge of such court, at any time when the business of such court becomes congested, may, upon his own motion, transfer any cause or causes filed and docketed in such criminal court to the circuit court of such county, and such cause or causes so transferred shall be redocketed and disposed of as if such cause or causes had been originally filed with such circuit court, and such circuit court shall have the same power, authority and jurisdiction over the causes so transferred to such court for trial as the criminal court of such county, and be subject to the same provisions of law.” By section 2 of the same act (section 1686.2), “the causes so transferred may be heard, tried and determined by the circuit court at any time either during term-time or vacation.”
The judge of the criminal court failed to enter of record the statutory ground-business congestion-as the reason for the transfer of this cause to the circuit court. Hence it is claimed that the Lake circuit court did not acquire jurisdiction of the subject-matter of this action, for the reason that, as to criminal causes, its jurisdiction is limited and may be obtained only through the methods prescribed by law, citing McCarty v. State, 16 Ind. 310;Justice v. State, 17 Ind. 56;Walker v. State, 23 Ind. 61; and Cobb v. State, 27 Ind. 133. In each of those cases the pleading-information-was held to be insufficient to show jurisdiction in the common pleas court. The power of that court, under the then existing statute to hear and determine felony cases, depended upon certain pre-existing facts to be affirmatively pleaded. They were not pleaded, and the motion to quash in each of those cases was sustained. The instant question-jurisdiction of the Lake circuit court-does not involve the sufficiency of the present affidavit. The case at bar was commenced in a court having original exclusive jurisdiction to try appellant for the offense with which he was charged. It may be conceded that the jurisdiction of the Lake circuit court in criminal actions is limited to such cases only as shall be venued to it by the Lake criminal court, and that the only cause for such change of venue is business congestion. Whether or not such cause existed was a question alone to be determined by the judge of the criminal court. He may act upon his own motion,...
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