Harrison v. State, No. 28783

Docket NºNo. 28783
Citation231 Ind. 147, 106 N.E.2d 912
Case DateJune 26, 1952
CourtSupreme Court of Indiana

Page 912

106 N.E.2d 912
231 Ind. 147, 32 A.L.R.2d 875
HARRISON

v.
STATE.
No. 28783.
Supreme Court of Indiana.
June 26, 1952.

[231 Ind. 151]

Page 914

E. Miles Norton, Crown Point, Floyd W. Burns, Frank A. Symmes, Charles W. Symmes, Wray E. Fleming, Indianapolis (Symmes, Fleming & Symmes, Indianapolis, Cadick & Burns, Indianapolis, of counsel), for appellant.

J. Emmett McManamon, Atty. Gen., William T. McClain, Depty. Atty. Gen., John Ready O'Connor, Depty. Atty. Gen., for appellee.

BOBBITT, Judge.

Appellant was indicted for perjury under Acts of 1927, Ch. 203, § 8, p. 580, § 10-3802, Burns' 1942 Replacement, tried by jury, found guilty as charged and sentenced to imprisonment in the Indiana State Prison for a term of not less than one nor more than ten years.

Seven errors are assigned, but of these we deem it necessary to consider only three. (1) The trial court [231 Ind. 152] erred in overruling appellant's motion to quash the indictment; (2) The trial court erred in overruling appellant's written challenge to the array; and (3) The trial court erred in overruling appellant's motion for a new trial.

Appellant, an attorney at law, was Trustee by appointment of the Lake Superior

Page 915

Court of certain lots which had been purchased at a sheriff's sale for the benefit of the holders of certain Barrett Law bonds and the indictment 1 charges him with voluntarily and wilfully making a false and corrupt affidavit in connection with the Trustee's final report.

We shall consider the errors assigned in the order named.

First: Did the trial court err in overruling appellant's motionto quash the indictment? The motion to quash is based on two statutory grounds: (1) the facts stated do not constitute a public offense;

We shall consider the errors assigned in the order named.

First: Did the trial court err in overruling appellant's motion to quash the indictment? The motion to quash is based on two statutory grounds: (1) the facts stated do not constitute a public offense;

Page 916

and (2) the indictment does not state the offense with sufficient certainty.

[231 Ind. 153] Appellant contends that the sufficiency of the indictment herein may be tested by the answer to the question: Can the facts properly alleged be true and the appellant be innocent of the offense charged? If the answer to this question is in the affirmative, the indictment is bad; if in the negative, the indictment is good. State v.

Page 917

Green, 1935, 207 Ind. 583, 194 N.E. 182; Burnett v. State, 1929, 201 Ind. 134, 166 N.E. 430.

Two acts of false swearing are charged in the indictment: (1) That appellant swore that he received from the sale of certain lots to Herbert O. Berg and Jeanette F. Berg the sum of $500; whereas in truth, and in fact, the Bergs paid $1500 for said lots and appellant was chargeable, as Trustee, with the receipt of $1500 instead of $500, as stated in the report, and

Page 918

(2) The other act of false swearing is that the report shows appellant charged himself with receipts from Central Construction[231 Ind. 154] Corporation for the sale of certain lots including lots 2, 3, 4, 6, 18, and the west 8 feet of lot 19, in Block 1, in Woodlawn Terrace Addition to the city of Hammond, Lake County, Indiana; whereas in truth, and in fact, appellant did not sell said lots in Block 1 to Central Construction Corporation, and that none of the $7,800 received was a payment for said lots, but they were actually and in fact transferred to one John G. Phrommer by including them, without consideration, in a deed conveying other lots to said Central Construction Corporation, which company subsequently transferred said lots in Block 1 to the said Phrommer without consideration.

The report, on its face, imports that appellant, as Trustee, received a part of said $7,800 as consideration for said lots in Block 1, while it is alleged in the indictment that, in truth and in fact, they were transferred without consideration.

Measured by the rule upon which appellant relies, if the facts as alleged in either act of false swearing are true, appellant cannot be innocent of the crime charged against him, and such facts are sufficient to constitute a public offense. It is not necessary that the statements be false in all respects. State v. Jones, 1916, 185 Ind. 234, 113 N.E. 755, 1 A.L.R. 1136.

We are not impressed with appellant's argument that the report is literally true. It may be true in the sense used in argument of counsel, but if the allegation that [231 Ind. 155] the Bergs paid $1500 instead of $500 as reported is true, then the report which shows the receipt of only $500 is factually false.

This being a final report by appellant, as Trustee, he was chargeable with the full amount received from the sales of said lots. If, as appellant contends, the report is literally true because he did actually receive $500 from the sale of said lots, and the legal title to the other lots in question went to Central Construction Corporation, yet the affidavit states it to be factually true that appellant, as Trustee, received $1500 from Bergs for the sale of said lots to them and received nothing from Central Construction Corporation for the lots in Block 1 which the report shows were transferred as a part of the consideration for the $7,800 received from Central Construction Corporation.

If appellant's argument were followed to its logical conclusion, he could have reported receipts of $100, or any other amount, from the Bergs and his statement would have been literally true and perjury could not be charged upon the statement. If this were the accepted rule, any fiduciary might hold out part of the funds received, reporting only as much as he chose to report, and because he had actually received the amount reported his statement would then be literally true and he would not be subject to prosecution for perjury even though he had, in fact, received a much greater amount than was reported. We cannot believe the statement from 70 C.J.S., Perjury, § 8(b), p. 464, upon which appellant relies, is subject to such [231 Ind. 156] an interpretation. Appellant's position is untenable and the rule as stated in 70 C.J.S., supra, is not applicable to the facts in the case at bar.

The indictment herein charges the commission of perjury by making a voluntary affidavit. Such an indictment is sufficient to withstand the motion to quash if it shows the oath alleged to be false with such certainty and particularity as to inform the accused fairly of the charge he is called upon to meet. State v. Malone,

Page 919

1910, 174 Ind. 746, 93 N.E. 170. 70 C.J.S., Perjury, § 32(a), p. 495.

The indictment upon which appellant was arraigned and convicted charged the making of a false and voluntary oath in respect to the amount of money realized from the sale of the lots to said Bergs, and with respect to the receipt of a consideration for said lots in Block 1 transferred to Central Construction Corporation. This was sufficient to inform appellant fairly of the charge he was called upon to meet. The trial court did not err in overruling appellant's motion to quash the indictment.

Second: Did the court err in overruling appellant's (defendant's) written challenge to the array of jurors [231 Ind. 157] drawn to try the case? Appellant contends that the jury commissioners arbitrarily excluded attorneys at law from the list of prospective jurors and, because of this action, he was denied equal protection of the law guaranteed by the Fourteenth Amendment to the United States Constitution.

Appellant has failed to call our attention to any authorities in support of this contention, and a thorough independent search of the decided cases fails to disclose that the question here raised has ever been decided by any Appellate tribunal, either in the state or federal courts.

Acts of 1939, ch. 132, § 1, p. 656, § 4-3304, Burns' 1946 Replacement, provides for the selection of grand and petit jurors and, among other things, provides that the jury commissioners 'In making such selections, * * * shall not select the name of any person * * * who is to them known to be interested in or has a cause pending which may be tried by a jury to be drawn from the names so selected.'

This is a clear expression of the intent of the legislature that any person who might be interested in any case which might be tried by a jury selected from the names drawn should be excluded from the list of prospective jurors.

[231 Ind. 158] An attorney at law is an officer of the Court. Cole v. Myers, 1941, 128 Conn. 223, 21 A.2d 396, 136 A.L.R. 226; In re Keenan, 1934, 287 Mass. 577, 192 N.E. 65, 96 A.L.R. 679; 5 Am.Jur., Attorneys at Law, § 6, p. 264; and as such he is interested in and is an integral part of the judicial machinery which administers justice.

This court has held that jury commissioners must exercise their own judgment and discretion in selecting names of prospective jurors, but they may not 'arbitrarily refuse to consider any class or class of persons.' Dixon v. State, 1946, 224 Ind. 327, 67 N.E.2d 138; Swain v. State, 1939, 215 Ind. 259, 18 [231 Ind. 159] N.E.2d 921; Walter v. State, 1935, 208 Ind. 231, 195 N.E. 268, 98 A.L.R. 607; State ex rel. Passer v. County Board of Renville County, 1927, 171 Minn. 177, 213 N.W. 545, 52 A.L.R. 916.

It has been held that deputy sheriffs and other law enforcing officers, because of their interest in law enforcement, have in the absence of special statutory provision therefor, properly been excluded from jury service. Gaff v. State, 1900, 155 Ind. 277, 58 N.E. 74, 80 Am.St.Rep. 235.

This court held in Block v. State, 1885, 100 Ind. 357, that a deputy prosecuting attorney was incompetent as a juror and the verdict and judgment of the court was reversed because the deputy prosecuting attorney was permitted to sit on the jury which rendered the verdict against the defendant. At pages 361, 362, of 100 Ind. this court said:

'Where the...

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28 practice notes
  • Baker v. State, No. 29297
    • United States
    • Indiana Supreme Court of Indiana
    • December 13, 1956
    ...v. State, 1952, 230 Ind. 431, 438, 104 N.E.2d 721; Hansen v. State, 1952, 230 Ind. 635, 639, 106 N.E.2d 226; Harrison v. State, 1952, 231 Ind. 147, 168, 106 N.E.2d 912, 32 A.L.R.2d 875; Bowens v. State, 1952, 231 Ind. 559, 562, 563, 109 N.E.2d 91; Shutt v. State, 1954, 233 Ind. 169, 117 N.E......
  • Porter v. State, No. 177S14
    • United States
    • Indiana Supreme Court of Indiana
    • July 3, 1979
    ...rights as a result of such irregularities. Shack v. State, (1972) 259 Ind. 450, 457, 288 N.E.2d 155, 161; Harrison v. State, (1952) 231 Ind. 147, 165, 106 N.E.2d 912, 921; Rudd v. State, (1952) 231 Ind. 105, 111, 107 N.E.2d 168, 170-71. There is no showing here that appellant was in any way......
  • Shack v. State, No. 1270S290
    • United States
    • October 25, 1972
    ...is not a requirement. The law requires that the commissioners use some discretion in the selection process. See Harrison v. State (1952), 231 Ind. 147, 106 N.E.2d 912. The major requirement should be that the system of selection is not arbitrary, see Harrison, supra, and complete impartiali......
  • Peak v. State, No. 29722
    • United States
    • Indiana Supreme Court of Indiana
    • January 11, 1960
    ...and that he (Smith) was not in fact the actual grantor. Todd v. State, 1951, 230 Ind. 85, 90, 101 N.E.2d 922; Harrison v. State, 1952, 231 Ind. 147, 167-168, 106 N.E.2d 912, 32 A.L.R.2d 875; Shutt v. State, 1954, 233 Ind. 169, 174, 117 N.E.2d 892; Dobson v. State, Ind. 1959, 158 N.E.2d 455,......
  • Request a trial to view additional results
28 cases
  • Baker v. State, No. 29297
    • United States
    • Indiana Supreme Court of Indiana
    • December 13, 1956
    ...v. State, 1952, 230 Ind. 431, 438, 104 N.E.2d 721; Hansen v. State, 1952, 230 Ind. 635, 639, 106 N.E.2d 226; Harrison v. State, 1952, 231 Ind. 147, 168, 106 N.E.2d 912, 32 A.L.R.2d 875; Bowens v. State, 1952, 231 Ind. 559, 562, 563, 109 N.E.2d 91; Shutt v. State, 1954, 233 Ind. 169, 117 N.E......
  • Porter v. State, No. 177S14
    • United States
    • Indiana Supreme Court of Indiana
    • July 3, 1979
    ...rights as a result of such irregularities. Shack v. State, (1972) 259 Ind. 450, 457, 288 N.E.2d 155, 161; Harrison v. State, (1952) 231 Ind. 147, 165, 106 N.E.2d 912, 921; Rudd v. State, (1952) 231 Ind. 105, 111, 107 N.E.2d 168, 170-71. There is no showing here that appellant was in any way......
  • Shack v. State, No. 1270S290
    • United States
    • October 25, 1972
    ...is not a requirement. The law requires that the commissioners use some discretion in the selection process. See Harrison v. State (1952), 231 Ind. 147, 106 N.E.2d 912. The major requirement should be that the system of selection is not arbitrary, see Harrison, supra, and complete impartiali......
  • Peak v. State, No. 29722
    • United States
    • Indiana Supreme Court of Indiana
    • January 11, 1960
    ...and that he (Smith) was not in fact the actual grantor. Todd v. State, 1951, 230 Ind. 85, 90, 101 N.E.2d 922; Harrison v. State, 1952, 231 Ind. 147, 167-168, 106 N.E.2d 912, 32 A.L.R.2d 875; Shutt v. State, 1954, 233 Ind. 169, 174, 117 N.E.2d 892; Dobson v. State, Ind. 1959, 158 N.E.2d 455,......
  • Request a trial to view additional results

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