Goldstine v. State, 28833

• Decision Date: 07 February 1952
• Docket Number: No. 28833,28833
• Citation: 103 N.E.2d 438,230 Ind. 343
• Parties: GOLDSTINE v. STATE.
• Court: Indiana Supreme Court

Page 438

103 N.E.2d 438

230 Ind. 343

GOLDSTINE v. STATE.

No. 28833.

Supreme Court of Indiana.

Feb. 7, 1952.

Robert A. Buhler, Chester A. Lincoln and James P. Murphy, all of Ft. Wayne, for appellant.

J. Emmett McManamon, Atty. Gen., John Ready O'Connor, Norman J. Beatty and William T. McClain, Deputy Attys. Gen., for appellee.

JASPER, Judge.

Appellant was charged by affidavit in five counts with (1) entering to commit a felony, under § 10-704, Burns' 1942 replacement; (2) possession of burglar tools, under § 10-703, Burns' 1942 Replacement; (3) automobile banditry, under § 10-4710, Burns' 1942 Replacement; (4) robbery while armed, under § 10-4709, Burns' 1942 Replacement; and (5) second degree burglary, under § 10-701, Burns' 1942 Replacement. A motion to quash was filed to each count of the affidavit and was overruled. There was a plea of not guilty to each count, trial was by jury, a verdict of guilty was returned on each count of the affidavit, and a further verdict returned finding appellant guilty of grand larceny, and sentence on each followed.

Appellant first assigns as error the overruling of his motion to quash the affidavit and each of the five counts thereof.

The Attorney General in a forthright manner admitted error in count three. There was a failure to charge one of the necessary elements of the offense of automobile banditry, based on the crime of robbery. This count did not allege that property was taken from the person or possession, or in the presence, of the person robbed, or that there was an attempt to take property from the person or possession, or in the presence, of the person robbed. Neither were the elements of larceny alleged. Pope v. State, 1949, 227 Ind. 197, 84 N.E.2d 887. The motion to quash this count should have been sustained. It was error not to do so. Chizum v. State, 1932, 203 Ind. 450, 453, 180 N.E. 674; Ramsey v. State, 1932, 204 Ind. 212, 183 N.E. 648.

It is further admitted by the Attorney General that count four of the affidavit, charging robbery while armed, failed to allege the necessary elements of the offense of robbery. ¹ The pertinent part of count four is as follows: 'David J. Milbourn first being duly sworn upon his oath says that on or about the 5th day of September, 1950 in the County of Noble, State of Indiana Sam Goldstein did then and there unlawfully, feloniously commit and attempt to commit a crime: to-wit: robbery and that he was armed with a dangerous and deadly weapon, to-wit: a pistol contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state of Indiana.'

We agree with the admission of error.

This count is further defective, and subject to a motion to quash, in that it fails to allege that appellant was over the age of sixteen years. Section 10-4709, Burns' 1942 Replacement, supra, provides: 'Any person who being over sixteen years of age, commits or attempts to commit * * *.' This section of the statute makes the allegation as to age a necessary element, and without it the affidavit is so uncertain that it was subject to a motion to quash. Wiley v. State, 1876, 52 Ind. 516. Appellee argues that the defect was cured by the evidence of the accused. To this we cannot agree. To support this proposition, appellee cites Adams v. State, 1946, 224 Ind. 472, 69 N.E.2d 21. However, in that case there was no motion to quash filed, and the accused stipulated his age at the time of entering his plea. The court held that this cured the defect. In the case at bar, appellant was entitled to have the affidavit, made sufficiently certain so as to advise him of the offense charged. Without the allegation as to age, as required by the statute, the offense was subject to a motion to quash. It was error to overrule the motion.

The verdict of the jury finding appellant guilty of the crime of grand larceny was based upon the fourth count of the affidavit, charging robbery whild armed. Since the necessary elements of robbery were not alleged, and none of the elements of the offense of grand larceny was alleged, there could not be a finding of guilty of the crime of grand larceny. Hazlett v. State, 1951, 229 Ind. 577, 99 N.E.2d 743. It was error to enter judgment for the crime of grand larceny.

Appellant further asserts that the motion to quash should have been sustained as to count two of the affidavit, charging the possession of burglary tools, under § 10-703, Burns' 1942 Replacement, ² supra, contending that it was necessary to separately describe such tools; and further contending that, in charging the prior conviction, it was necessary for appellee to allege the name of the court where the prior conviction was obtained, the charge on which the accused was tried, and the date and effect of the judgment of conviction. Count two of the affidavit, omitting the formal parts, is as follows: 'David J. Milbourn first being duly sworn upon his oath says that on or about the 5th day of September, 1950 in the County of Noble, State of Indiana, Sam Goldstein, who had previously been convicted of a felony, to-wit: robbery, did then and there unlawfully and feloniously have in his possession burglary tools and implements with the intent to commit the crime of burglary, contrary to the form of the statute in such cases made and against the peace and dignity of the state of Indiana.'

The motion to quash was based on the two statutory grounds--that the facts in count two did not constitute a public offense and did not state the offense charged with sufficient certainty. The general rule is that an offense stated in the substantial language of the statute is sufficient as against a motion to quash, however, § 10-703, Burns' 1942 Replacement, supra, is an exception to the rule. The words 'burglar tools or implements', as used therein, are of such a general character that they are not sufficiently certain in themselves to apprise the accused of the charge when a motion to quash is filed. We feel that the law is well stated in 9 Am.Jr., § 88, pp. 282, 283, as follows: 'The indictment should contain a sufficient description of the tools to advise the accused as to what particular tools he is charged with having in his possession.'

The averment in count two of the affidavit '* * * have in his possession burglary tools and implements * * *' is a material fact, stated in a defective manner and form. It is not sufficiently certain, and therefore is subject to the motion to quash. ³ We cannot agree with the argument of appellee to the effect that to describe the tools would be pleading evidence, as the burglary tools, if not substantially described, could cause the accused to face the possibility of being twice placed in jeopardy. Further, a substantial description of the tools is necessary to advise appellant of the crime with which he is charged. The second count of the affidavit is further not sufficiently...