Helms v. State

• Decision Date: 30 October 1968
• Docket Number: No. 31140,31140
• Citation: 241 N.E.2d 244,251 Ind. 335
• Parties: Anthony Kent HELMS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 244

241 N.E.2d 244

251 Ind. 335

Anthony Kent HELMS, Appellant, v.STATE of Indiana, Appellee.

No. 31140.

Supreme Court of Indiana.

Oct. 30, 1968.

James D. Lopp, Sr., James D. Lopp, Jr., William J. Brune, Evansville, for appellant.

John J. Dillon, Atty. Gen., R. Robert Yeager, Deputy Atty. Gen., for appellee.

HUNTER, Judge.

This is an appeal by Anthony Kent Helms, appellant, from a conviction of murder in the second degree after trial by jury in the Warrick Circuit Court.

The indictment returned and filed by the grand jury, charging the defendant with murder in the first degree, omitting the caption, reads as follows:

'The Grand Jurors of Warrick County, in the State of Indiana, good and lawful men, duly and legally impaneled, charged and sworn to inquire into felonies and certain misdemeanors in and for the body of said County of Warrick in the name and by the authority of the State of Indiana, on their oath present that Anthony Kent Helms on the 30th day of January, A.D., 1966, at said County and State aforesaid, did then and there unlawfully, feloniously and purposely, and with premeditated malice, did kill and murder a human being, to-wit: Floyd W. Williams, by then and there unlawfully, feloniously, purposely and with premeditated malice shooting at and against the said Floyd W. Williams with a certain deadly weapon, to-wit: a pistol, then and there loaded with gun powder and bullets, and thereby inflicting a mortal wound upon the said Floyd W. Williams, of which mortal wound the said Floyd W. Williams did then and there die.And so the Grand Jurors aforesaid upon their oath aforesaid, do say and charge that the said Anthony Kent Helms, in manner and form aforesaid, unlawfully, feloniously, purposely and with premeditated malice, did kill and murder the said Floyd W. Williams, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Indiana.

s/s John Burley Scales

John Burley Scales,

Prosecuting Attorney

RECORDED THIS 11 day of January, 1966.

WOODROW W. HOLDER

CLERK OF THE WARRICK CIRCUIT COURT

No. 5976

WARRICK CIRCUIT COURT

JANUARY TERM, 1966

THE STATE OF INDIANA

VS

ANTHONY KENT HELMS

INDICTMENT FOR MURDER, FIRST DEGREE (10-3401)

A True Bill

Norman E. Bertram

Foreman Appellant's assignment or error presents several causes alleged in his motion for a new trial.Causes 1, 2, 3 and 4 assert the trial court committed error in overruling appellant's plea in abatement and motion for new trial on said plea, and cause $5 urges error on the part of the trial court in overruling his motion to quash the indictment.

Essentially the alleged errors alleged in the overruling of appellant's plea in abatement and motion to quash, causes 1, 2, 3, 4 and 5 above, are predicated upon the fact that the indictment contained the pre-typed words 'A True Bill' rather than in the personal handwriting of those words by the grand jury foreman upon the returned bill.However, the indictment was also personally signed and endorsed by the foreman.This court has never passed upon the specific question presented here.Ind.Ann.Stat. § 9-901(1956 Repl.) provides as follows:

'Indictment--How found--At least five (5) of the grand jurors must concur in the finding of an indictment; and when so found it must be signed by the prosecuting attorney; and it must also be endorsed by the foreman of the grand jury, 'A true bill' and he must subscribe his name thereon as foreman.'(Acts 1905, ch. 169, § 110, p. 584) and:

Ind.Ann.Stat. § 9-902(1956 Repl.) provides in part as follows:

'Neglect to endorse or sign--Court order--As soon as the grand jury has returned an indictment into court, the judge must examine it; and if the foreman has neglected to endorse it, 'A true bill', with his name signed thereto, * * * the court must cause the foreman to indorse it * * * in the presence of the jury.'

This latter section also requires the indictment be signed by the prosecuting attorney.

An interpretation of the two sections set out above is necessary to the determination of the precise question presented by the assignment of error under causes 1, 2, 3, 4 and 5 above.The appellant, in support of his allegations or error, cites the following cases: Terrell v. Commonwealth(1922), 194 Ky. 608, 240 S.W. 81;Johnson v. State(1864), 23 Ind. 32;Heacock v. State(1873), 42 Ind. 393;Cooper v. State(1881), 79 Ind. 206.He also cites Ind.Ann.Stat. §§ 9-901and9-902, supra, as requiring a voiding of the indictment.

In the Terrell case, it appeared that upon the back of the indictment there was a signature of one, 'G. W. Eversole' and immediately thereunder and slightly to the right, was the indorsement 'a true bill'.The order of the court recited that it was received in open court from the hands of the foreman and in the presence of the grand jury, and was handed by the foreman to the clerk and was marked filed as required by law.The Kentucky Court of Appeals in commenting upon the alleged defect stated:

'The purpose of the requirement that the indictment shall be indorsed 'a true bill,' and that it shall be signed or certified as such by the foreman of the grand jury, is to unerringly identify the indictment and to evidence the fact that it was concurred in by the grand jury in the manner required by law, and such indorsement constitutes the only competent evidence that the paper filed is an indictment legally found.'240 S.W. at 83.

However, we fail to perceive the applicability of Terrell, supra, as support for the appellant's contention of error, since in that case the judgment was affirmed.

In Johnson v. State, supra, this court stated:

'In this case there was a motion to quash the indictment because it was neither endorsed 'a true bill' nor signed by the foreman of the grand jury.'

Thus, on its facts, the Johnson case has no relevancy to the instant case.

In Heacock v. State, supra, the indictment was not signed by the prosecuting attorney as required by statute and the court held that the indictment was not properly returned and a motion to quash should have been sustained.Likewise, Heacock has no application to the case at bar.Ind.Ann.Stat. § 9-902, supra.

In Cooper v. State, supra, the record as reviewed by this court stated that the

'Indictment copied in the record reveals the lack of the requisite endorsement.The defect is apparent upon an inspection of the pleading * * * The endorsement is made by statute an essential element of the indictment, and its absence is a defect for which a motion to quash will lie.'

Therefore, the facts in Cooper also make that case inapplicable to the matter before us.

The appellant cites State v. Bowman(1885), 103 Ind. 69, 2 N.E. 289, for an incorrect proposition.In that case, this court held that it was error to quash an indictment merely because the name of the foreman is indorsed in the wrong place.Likewise wise appellant's citation to Strange v. State(1886), 110 Ind, 354, 11 N.E. 357 is not in point for in the instant case there is an indorsement, and appellant's citation of State v. Buntin(1889), 123 Ind. 124, 33 N.E. 1140 is not applicable since the indictment here does contain the words 'a true bill'.

For all the foregoing reasons we hold that the cases cited by the appellant do not sustain his contention that the indictment was fatally defective.

The specific question presented by this appeal relative to the validity of the indictment returned has not heretofore been decided in Indiana.However, in the Ohio case of Ruch v. State(1924), 111 Ohio St. 580, 146 N.E. 67, which was decided under a statute similar to Ind.Ann.Stat. § 9-901, supra, it was held that the mere fact that the words 'A Ture Bill' were printed on the usual indictment form on the back thereof and the foreman signed only his name did not invalidate the indictment.

The court stated very clearly that:

' * * * These are formal matters required by law but they are of an exceedingly technical nature, and it is difficult to see how in any event the defendant has been prejudiced'146 N.E. at 69.

In the present case, therefore, we hold that the error alleged and argued by the appellant in his brief under causes numbered to one (1) thru five (5) is without merit.This holding is consistent with our recent decision in Froedge v. State (1968), Ind., 233 N.E.2d 631, relative to an alleged technical defect in an indictment under the provisions of Ind.Ann.Stat. § 9-1127(1956 Repl.).That statute provides, in part:

'No indictment * * * shall be deemed invalid, nor shall the same be set aside or quashed * * * for any of the following defects * * *

Tenth.For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.'

In holding that appellant's asserted errors numbered 1 through 5 are without merit, we are

'in harmony with the modern trend of judicial thinking under similar statutes evidencing as they do an intent to eliminate technical and formal defects which in no way prejudice the defendant or affect his substantial rights.This is a judicial postulate that is necessary to the administration of justice and the elimination of narrow technical formalism in the theory and applications of the principles of criminal law. * * *'Eroedge v. State (1968), Ind., 233 N.E.2d 631.

This principle is also sustained in State v. Bowman, supra.

Other matters contained in the appellant's motion to quash alleged (1) that the indictment does not state facts sufficient to constitute a public offense; and (2) that the indictment does not state the offense charged with sufficient certainty.These matters are not sustained by cogent argument and are unsupported by case law citations in appellant's brief and are therefore waived.Oldham, Davis v. State (1967), Ind., 231 N.E.2d 791.Supreme Court Rule 2-17(i).

Appellant's assignments of error numbered 6, 7, 8 and 9 of his motion for new trial are...