Hinshaw v. State

• Decision Date: 13 March 1919
• Docket Number: 23,127
• Citation: 122 N.E. 418,188 Ind. 147
• Parties: Hinshaw v. State of Indiana
• Court: Indiana Supreme Court

122 N.E. 418

188 Ind. 147

Hinshaw v. State of Indiana

No. 23,127

Supreme Court of Indiana

March 13, 1919

From Hamilton Circuit Court; Will M. Sparks, Special Judge.

Prosecution by the State of Indiana against Edwin M. Hinshaw. From a judgment of conviction, the defendant appeals.

Reversed.

Christian & Christian, Fitzpatrick & Fitzpatrick, Ralph H. Waltz, and Holmes & McCallister, for appellant.

Ele Stansbury, Attorney-General, Elmer E. Hastings, Edward M White, N. C. Neal and J. F. Neal, and George W. Osborn, for the state.

Townsend J. Willough by J., not present.

OPINION

Townsend, J.

Appellant was convicted of conspiracy to commit a felony. The indictment, in two counts, was against him and three other persons. He was tried separately.

The questions are raised by motion to quash each count of the indictment. In the first count, omitting the formal matters, the grand jury presents: "That Edwin M. Hinshaw (with three others, at a time named) * * * did then and there unlawfully, knowingly and feloniously unite, combine, conspire, confederate and agree to and with each other, for the object and purpose, designedly and with the intent to cheat and defraud divers citizens of said county of Hamilton, and the public generally, by inducing and procuring said citizens and the public generally to pay and deposit money, and to deposit checks and drafts to the credit of such depositors in and into the Farmers and Merchants Bank of Cicero, Indiana, the said bank being then and there an incorporated bank, by then and there feloniously, knowingly, designedly and falsely pretending, representing and giving out in words and speeches, that said bank was then and there solvent, and by then and there using words and speeches that meant and imparted that said bank was then and there solvent and by then and there publishing in a newspaper of said county, verified statements of and concerning the liabilities, and resources of said bank, which showed and tended to show that said bank was solvent, whereas, in truth and in fact, said bank was then and there insolvent," etc.

Then this count alleges in substance that appellant and other persons named knew that the bank was insolvent; that divers citizens of the county and the public generally relied on the pretenses and representations and deposited their money in this bank; that the money was lost; that appellant and the three others were officers of the bank.

In this state all crimes are statutory. § 237 Burns 1914, § 237 R. S. 1881. The conspiracy statute on which this count of the indictment is based is in part as follows: "Any person or persons who shall unite or combine with any other person or persons for the purpose of committing a felony" etc. § 2647 Burns 1914, Acts 1905 p. 584, § 641. The crime being a conspiracy to commit a felony, the purposed felony must be charged as specifically as though the defendant were on trial for that felony. Landringham v. State (1874), 49 Ind. 186; Scudder v. State (1878), 62 Ind. 13; Smith v. State (1884), 93 Ind. 67; Green v. State (1901), 157 Ind. 101, 60 N.E. 941; Eacock v. State (1907), 169 Ind. 488, 82 N.E. 1039; Woodsmall v. State (1913), 179 Ind. 697, 102 N.E. 130; Allen v. State (1914), 183 Ind. 37, 107 N.E. 471.

The above cases mean that all the elements of the felony, which is the purpose and object of the conspiracy, must be alleged so directly and positively that the defendant may know what he has to meet, and that the court may readily see what felony is purposed, and know how to limit the evidence. Indictments must be particular and specific enough in their charges that the grand jury may not base an indictment on evidence of one crime and the petit jury base a verdict on evidence of another crime. An indictment must be so plain that an acquittal or conviction can be pleaded in bar of a subsequent prosecution for the same offense.

It is earnestly insisted by learned counsel for the appellant that this count of the indictment does nothing but charge appellant with conspiring "to cheat and defraud," and that the further allegation in the indictment that the purpose of the alleged conspiracy was accomplished is but an aggravation of the charge of conspiracy, and does not aid this count of the indictment, because there is nowhere aptly charged, as the purpose and object of the conspiracy, anything which is denominated a felony by the statutes of this state.

Because, in the part of the indictment which is designated the object and the purpose of the conspiracy, there are apt words, under the statute and under judicial interpretations of the statute, which could be used to charge the crime of false pretense, it is contended by the state that therefore this count of the indictment is sufficient. The allegation in this count is "designedly with the intent to cheat and defraud, etc., * * * by inducing and procuring, etc., * * * by then and there feloniously, knowingly, designedly and falsely pretending, representing and giving out" etc.

It is not a felony in this state to cheat and defraud. Cheating and defrauding are broader terms than the crime of false pretense. Within these two terms are included not only the crimes of false pretense, but also all civil frauds. Nor does it help this count of the indictment because fraud and false pretense are logically related. Perjury is logically and closely related to "thwarting the purposes of justice," yet the latter, not being a crime defined by statute, could not be the object of a criminal conspiracy under our law, even though it was alleged that thwarting the purposes of justice was accomplished by perjury aptly charged as the means. State v. McKinstry (1875), 50 Ind. 465. The most that this count charges as the object of the conspiracy is to do a civilly unlawful act by a criminal means.

The gist of a criminal offense must be stated in direct and positive terms. This count of the indictment would be good at common law, for at common law a conspiracy to do an unlawful act is indictable, and a conspiracy to do a lawful act by a criminal means is indictable. A conspiracy to do an act which is a civil wrong is indictable at common law. That is to say, each one of the conspirators doing the act by himself would be liable to respond in damages only; but when two or more conspire to do the act, the conspiracy becomes criminal. Therefore the authorities from other states where the common-law crime of conspiracy exists are wholly aside from the point here in question. The state cites in support of this count of the indictment the case of Cole v. People (1876), 84 Ill. 216, and Smith v. People (1860), 25 Ill. 9, 76 Am. Dec. 780. An examination of these cases discloses that they are decided upon the common-law crime of conspiracy. For discussion, see note to Smith v. People, supra.

We can infer from this count of the indictment that the state intended to charge that the defendants conspired for the object and purpose feloniously, knowingly, designedly and falsely to pretend, etc. Because the words are in the indictment which could be used to positively state the gist of the offense as the object of the conspiracy, it will not do to say that therefore the state has charged the purposed offense substantially in the language of the statute. This count of the indictment is bad, and the motion to quash should have been sustained.

Undoubtedly the state was misled in drawing this indictment by examining generally the law on the subject of conspiracy, rather than confining its investigation to the adjudicated cases in this state. It may be that the state was relying on chapter 62 Acts 1915 p. 123, which is designated "An act concerning proceedings in civil and criminal cases." ...