Headlee v. State

• Citation: 201 Ind. 545,168 N.E. 692
• Decision Date: 20 November 1929
• Docket Number: No. 25304.,25304.
• Parties: HEADLEE v. STATE.
• Court: Supreme Court of Indiana

201 Ind. 545

168 N.E. 692

HEADLEE

v.STATE.

No. 25304.

Supreme Court of Indiana.

Nov. 20, 1929.

Appeal from Rush Circuit Court; Will M. Sparks, Judge.

Sylva Headlee was convicted for the offense of vehicle taking, and he appeals. Affirmed.Chauncey W. Duncan, Wm. J. Henley, Sr., and Albert C. Stevens, all of Rushville, for appellant.

Arthur L. Gilliom, Atty. Gen., and Harry L. Gause, Deputy, Atty. Gen., for the State.

GEMMILL, C. J.

The appellant was prosecuted by indictment for the offense of vehicle taking, in violation of section 1, c. 189, Acts 1921, section 2460, Burns' 1926. He entered a plea of not guilty and was tried by a jury, which found him guilty as charged. The court rendered judgment on the verdict and it was adjudged that he be fined in the sum of $100, be imprisoned in the Indiana State Prison for a period of three to five years, be disfranchised for three years and pay the costs. From that judgment, he has appealed to this court. Prior to the trial, the appellant filed a plea in abatement, in which he alleged that he was the defendant in this criminal prosecution, being charged by indictment with the crime of vehicle taking, and that he ought not to be tried for that offense, for the reason that before the indictment was found against him at the June term, 1925, of the Rush circuit court, an affidavit was filed against him charging him with the offense of receiving stolen goods; that on his petition the venue in that cause was changed to the Decatur circuit court; that the parties to this action and that action, the subject-matterof this and the former prosecution, are the same, and the prosecution for receiving stolen goods is still pending against him. A demurrer was filed to this plea in abatement, which was sustained by the court.

[1][2] The plea in abatement shows on its face that the appellant was charged with two different and distinct crimes. It may be true that each offense was the result of the same alleged act of the defendant. If so, there could have been a prosecution for either one. Even if the prosecutions had been for the same offense, the pendency of a criminal prosecution against the defendant in another court where jeopardy had not attached would not have been available to defeat a prosecution in a court of competent jurisdiction. Dutton v. State (1854) 5 Ind. 533;Hardin v. State (1864) 22 Ind. 347;State v. Osborn (1900) 155 Ind. 385, 58 N. E. 491;Peters v. Koepke (1901) 156 Ind. 35, 59 N. E. 33. The plea shows that jeopardy had not attached in the case in Decatur county. The court did not err in sustaining the demurrer to the plea in abatement.

The statute under which this indictment was brought is as follows: “Whoever unlawfully, without the consent of the owner, takes, hauls, carries or drives away any vehicle, automobile, car, truck, aeroplane or airship, operated by electricity or steam or explosive power, or any accessory, or appurtenance contained in, on or forming a part thereof, of the value of twenty-five dollars ($25) or more, or whoever received [receives], buys, conceals, or aids in the concealment of, such or any one or more of such, knowing the same to have been taken, shall be guilty of the crime of vehicle taking. ***” Section 2460, Burns' 1926.

[3] There was a motion filed to quash the indictment upon the following grounds: (1) The facts stated in said indictment did not constitute a public offense; and (2) said indictment did not state the offense charged with sufficient certainty. Part of the indictment was as follows: That Finley Nelson and Clyde Willis, on or about the 18th day of February, A. D. 1925, at Rush county, state of Indiana, did then and there unlawfully and feloniously, and without the consent of the American Security, a corporation, take, haul, carry, and drive away an automobile, then and there operated by explosive power then and there being the property of and owned by the said American Security Company, a corporation, and of the value of $350, and the said Sylva Headlee did then and there unlawfully and feloniously, and without the consent of the said American Security Company, a corporation, the said owner of said automobile, receive, buy, conceal, and aid in the concealment of the said automobile, he (the said Sylva Headlee) then and there well knowing the said automobile to have been unlawfully and feloniously and without the consent of the said owner taken and driven away by the said Finley Nelson and Clyde Willis, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Indiana.

[4] In support of his motion to quash, the appellant objected to the following words in the statute: “Knowing the same to have been taken.” And he says that the statute is void for uncertainty and is too indefinite in defining any offense and so indefinite and uncertain that no indictment, affidavit, or charge could be drawn pursuant thereto stating any offense. There is no merit to these objections.

[5] Objection was also made to the indictment for the reason that there is a variance between the material allegations therein. In the indictment it was alleged that the automobile was taken without the consent of the “American Security, a corporation”; that it was the property of and owned by said “American Security Company, a corporation”; and that the defendant did receive, buy, conceal, and aid in the concealment of the automobile without the consent of said “American Security Company, a corporation.” It is apparent from the indictment that the name of the corporation which owned the automobile was “American Security Company, a corporation,” and that, where first used therein, the word “Company” was omitted. In section 2225, Burns' 1926, it is said: “No indictment or affidavit shall be deemed invalid, nor shall the same be set aside or quashed, *** for any of the following defects: *** Sixth. For any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged.” The omission of the word “Company” one place in the indictment could neither have misled the defendant nor prejudiced his rights. The indictment was sufficient.

The third, fourth, and fifth, assignments of error are not proper as separate assignments. However, they are also named as causes in the motion for a new trial and will be considered under that assigned error.

The defendant's motion in arrest of judgment was for the reason that the facts stated in the indictment did not constitute a public offense. Having decided that the indictment was sufficient it must be held that the court did not commit error in overruling that motion.

[6] In the motion for a new trial, 62 causes are stated. The first cause was that one of the jurors who sat in the trial, and who was the foreman of the jury, was biased and prejudiced against the defendant and his cause of defense for reasons therein set out, and that, when this juror was accepted as such, the defendant and his attorneys did not have any knowledge of the facts which made him incompetent to serve. The objections to this juror, made after the trial, appear only in the motion for a new trial. An affidavit in support of a motion for a new trial can only be brought into the record by a bill of exceptions. Kleespies v. State (1886) 106 Ind. 383, 7 N. E. 186;Robb v. State (1896) 144 Ind. 569, 43 N. E. 642;Reed v. State (1897) 147 Ind. 41, 46 N. E. 135;Siberry v. State (1895) 149 Ind. 684, 39 N. E. 936, 47 N. E. 458;Perfect v. State (1923) 197 Ind. 401, 141 N. E. 52. As this cause for a new trial is not properly presented, it cannot be reviewed.

One of the causes for a new trial was that the verdict of the jury was not sustained by sufficient evidence. The indictment charged that the automobile was taken without the consent of the “American Security, a corporation”; that it was the property of and owned by the said “American Security Company, a corporation”; and that it was received by the defendant without the consent of the said “American Security Company, a corporation.” The owner of the automobile was named in evidence several times as “American Security Company.” And there was evidence that the “American Security Company” was a corporation. Later, it appeared in evidence that the name of the corporation claiming ownership of the automobile and mentioned as “American Security Company” was “American Security Company of Rushville, Indiana.”

In 1 Wharton, Criminal Evidence (10th Ed.) § 95, p. 288, it is said: “The modern rule is that a variance in names is not now regarded as material unless it appears to the court that the jury was misled by it, or some substantial injury is done to the accused, such as that, by reason thereof, he was unable intelligently to make his defense, or he was exposed to the danger of a second trial in the same charge.” In Underhill, Criminal Evidence (3d Ed.) § 82, it is stated that, if sufficient evidence is introduced to identify the person intended, the variance of name is immaterial and will be disregarded. In Kruger v. State (1893) 135 Ind. 573, 35 N. E. 1019, 1021, it is said by this court: “An approved modern author thus states the rule: ‘A variance is not now regarded as material unless it is such as might mislead the defense, or might expose the accused to the danger of being put twice in jeopardy for the same offense.’ 3 Rice, Crim. Ev. § 121.”

In State v. Long (1919) 278 Mo. 379, 213 S. W. 436, 438, in a prosecution for the larceny of hogs from “the University of Missouri,” variance in the proof of the ownership of the hogs, proved by the court's taking judicial notice of the fact that the corporation by which the university is controlled is styled “the curators of the University of Missouri,” held harmless to the defendant. In that case the court said: “It is sufficient to allege the name by which a corporation is generally known, although the name alleged is not the corporation's...