Hobbs v. State

• Decision Date: 10 January 1893
• Citation: 133 Ind. 404,32 N.E. 1019
• Parties: HOBBS et al v. STATE.
• Court: Indiana Supreme Court

133 Ind. 404

32 N.E. 1019

HOBBS et al

v.STATE.

Supreme Court of Indiana.

Jan. 10, 1893.

Appeal from circuit court, Dubois county; O. M. Welborn, Judge.

France Hobbs, Daniel King, Samuel Spraggins, Thomas Smith, and five others were convicted for riotous conspiracy under the “White Cap Act,” and they appeal. Affirmed.

Traylor & Hunter and Jerry L. Suddarth, for appellants. T. H. Dillon, for the State.

Hackney, J.

At the January term, 1892, of the Dubois circuit court the appellee charged, by information, the appellants, France Hobbs, Daniel King, Samuel Spraggins, and Thomas Smith and five others, with the offense of riotous conspiracy, as defined by what is known as the “White Cap Act.” On the 28th day of April, 1892, the court sustained a motion to quash the first count of the information, and upon leave of the court the prosecutor filed an amended first count, charging that at, etc., on, etc., the defendants did “unlawfully and feloniously unite and combine together for the purpose of unlawfully and feloniously, in a rude, insolent and angry manner, striking, beating, and bruising one Henry G. Berger in the nighttime, and for said unlawful purpose said defendants did then and there disguise themselves by wearing masks and being otherwise disguised.” A motion to quash the amended count was overruled, the defendants were tried by the court, and the appellants were convicted of riotous conspiracy, and fined five dollars each, and sentenced to two years' imprisonment in the state prison.

There are six assignments of error, and they will be disposed of in their order. The first assignment seeks to present the question whether a prosecution may be maintained by information filed while the grand jury is in session. The transcript contains an order of the court convening and charging the grand jury on the 26th day of April, 1892; and the contention is that the session of the grand jury must be presumed to have continued to include April 28, 1892, the day on which the motion to quash was sustained, and the amended first count was filed. The action of the court in charging the grand jury was not in any manner connected with the action against the appellants, and it finds way to this court only by an unnecessary recital of the clerk. It is not a part of the record of proceedings in this cause as made by the trial court, and cannot be considered. Elliott, App. Proc. § 280; Pattee v. State, 109 Ind. 546, 10 N. E. Rep. 421.

The question urged is not properly before us for another reason. Section 1733, Rev. St. 1881, provides that the question can be raised only upon a verified plea in abatement. See, also, Hoover v. State, 110 Ind. 347, 11 N. E. Rep. 434.

The second assignment, and the argument of counsel upon it, raise the question as to whether the amended count is bad for duplicity. The language of the statute (Elliott, Supp. § 362) is as follows: “If three or more persons shall unite or combine together for the purpose of doing any unlawful act in the nighttime, or for the purpose of doing any unlawful act, while wearing white caps, masks, or being otherwise disguised, shall be deemed guilty of a riotous conspiracy, and upon conviction therefor shall be imprisoned in the state prison not more than ten years nor less than two years, and fined in any sum not exceeding two thousand dollars.” It is insisted that the statute defines two crimes, namely, one a conspiracy to do an unlawful act in the nighttime, and another a conspiracy to do an unlawful act while wearing white caps, masks, etc.; and it is claimed that the information charges both these offenses in said amended count. We do not disagree with the proposition that an indictment or information may be had for duplicity, as is held in Knopf v. State, 84 Ind. 316, cited by the appellants, but we do disagree with the contention that this information is bad for such cause. Mr. Bishop in his work on Criminal Procedure, (volume 1, § 436,) speaking of statutes of the class under consideration here, says: “It is common for a statute to declare that if a person does this, or this, or this, he shall be punished in a way pointed out. Now, if in a single transaction he does all the things, he violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore an indictment upon a statute of this kind may allege in a single count that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction ‘and’ where the statute has ‘or’, and it will not be double, and it will be established at the trial by proof of any one of them.” Davis v. State, 100 Ind. 154;Fahnestock v. State, 102 Ind. 156, 1 N. E. Rep. 372, and Mergentheim v. State, 107 Ind. 568, 8 N. E. Rep. 568, follow the rule as announced by Mr. Bishop; and its application to the statute under consideration, and to the information in question, is decisive of the point, and we must hold the count sufficient.

The third assignment of error, and the argument of counsel under it, raise the question of the correctness of the court's action in permitting the prosecuting witness and another to testify to statements of the prosecuting witness made out of court, in corroboration of his testimony concerning the identity of the defendants. Witnesses for the defense had testified to statements of the prosecuting witness made out of court, to the effect that he had not recognized the defendants on the night of the acts charged, and the testimony to which objection is made was in the state's rebuttal evidence. Appellant's counsel seem to have confused the rule as to the character of a re-examination and that as to proper rebuttal testimony, if we may judge from the cases cited in support of their contention. Indeed, the case of Coffin v. Anderson, 4 Blackf. 395, cited by them, holds “that, if a witness has not been impeached by proof of his previously made statements inconsistent with his testimony, there seems to be no sufficient reason for the introduction of corroborating evidence. But it is otherwise if the witness has been thus impeached. It appears to be then proper to give the party who called the witness an opportunity to support him, by proving that...