Huffman v. State
| Decision Date | 25 June 1915 |
| Docket Number | 22,619 |
| Citation | 109 N.E. 401,183 Ind. 698 |
| Parties | Huffman v. State of Indiana |
| Court | Indiana Supreme Court |
Rehearing Denied November 5, 1915.
From Vigo Circuit Court; Felix Blankenbaker, Special Judge.
Prosecution by the State of Indiana against William Huffman. From a judgment of conviction, the defendant appeals.
Affirmed.
Albert J. Kelley, Louis D. Leveque and Hamill, Hickey & Evans, for appellant.
Thomas M. Honan, Attorney-General, Thomas H. Branaman and Joseph Roach, for the State.
OPINION
Appellant was prosecuted and convicted in the Vigo Circuit Court upon an indictment returned to such court on January 24, 1914. Before pleading generally to the indictment appellant filed a plea in abatement, which, upon motion of the State, was stricken from the files of the court. Appellant then filed a motion to quash the indictment which was overruled. The exceptions of appellant to these rulings raise the only questions which are presented on appeal.
The plea in abatement thus filed, as shown by the record, covered 123 typewritten pages. It is not practicable within the scope of this opinion to give even the substance of the averments contained therein. An attempt to do so would be a waste of time on the part of the court and the result would be of no value to anyone. The pleading, if it may be properly so designated, is composed almost entirely of immaterial, redundant and impertinent matter, much of which is scandalous, reflecting as it does on the motives which influenced the action of the trial court and also containing charges of crime and misconduct on the part of persons in no way connected with the case. If the improper matter were eliminated the material facts might be concisely stated within the scope of two or three typewritten pages. The trial court could not permit these pleadings to stand in such a form, and in order to purge the files it was required to either strike it out as a whole or to separate the "two grains of wheat" from the "two bushels of chaff" and to eliminate the improper and objectionable matter. If the motion to strike had been directed to only such allegations as contain improper and objectionable matter, there could have been no doubt as to the propriety of sustaining it, but by sustaining the motion to strike out the whole pleading, the proper and material allegations were carried out along with those that are improper and immaterial.
Appellant asserts that it is error to strike out a pleading as a whole, where it contains proper and material allegations even though it contains improper and scandalous matter. It is the general rule that the motion to strike out under such circumstances should be directed only to the allegations which contain the improper matters, especially where the allegations can be eliminated leaving such a connected statement of material facts as constitutes a sufficient pleading or which is capable of being so amended as to make it sufficient. A different rule prevails, however, with reference to pleadings in which the scandalous and impertinent matter predominates as it does in the pleading under consideration, and where it is so mingled and blended with that which is pertinent and proper as to render the separation impracticable or extremely difficult. In such a case the entire pleading may be struck from the files. Van Etten v. Butt (1891), 32 Neb. 285, 49 N.W. 365; People v. Albany, etc., R. Co. (1870), 57 Barb. 204; People v. Church (1870), 2 Lans. (N.Y.) 459; Ringo v. New Farmers' Bank (1897), 101 Ky. 91, 39 S.W. 701; Price v. Tyson (1831), 3 Bland 392, 400, 22 Am. Dec. 279; Attorney General v. Parsell (1894), 99 Mich. 381, 58 N.W. 335; Armstrong v. Phillips (1891), 60 Hun 243, 14 N.Y.S. 582; Mitchell v. Brown (1883), 88 N.C. 156. In the case of Ringo v. New Farmers Bank, supra, the court struck out an answer as a whole because it contained scandalous matter, but granted defendant leave to file an answer eliminating the objectionable averments. If, after appellant's answer in abatement was struck out, he had offered to file a proper answer, the court, no doubt, would have given him leave to do so. In the case of Mitchell v. Brown, supra, the court, in speaking of a replication containing improper language, said, "The replication ought not to have been received with this offensive language, or when discovered, should have been removed from the files until reformed and made consistent with the rules of pleading as prescribed in the code."
Allegations which are pertinent can not be scandalous, but if they are impertinent and reflect on character or contain criminations they are scandalous whether true or false. If that which is stated is material to the issue it may be false but it can not be scandalous. Ex parte Simpson (1809), 15 Ves. Jr. 476. On the other hand, the fact that allegations of this character be true will not prevent them from being scandalous if they are not material to the issue. Pearse v. Pearse (1873), 29 L. T. (N. S.) 453.
A court is bound to purge its records of scandal and where a pleading or other paper filed in court is of such a character that the scandalous portion can not be expunged without affecting the integrity and meaning of the remaining portion it may be stricken out as a whole. The answer in abatement was of such a character as to justify the ruling made and the trial court did not err therein.
The remaining questions presented relate to the sufficiency of the indictment. It appears from the indictment that on November 3, 1913, appellant was an election inspector in one of the voting precincts of the city of Terre Haute for an election which was to be held on the following day; and as such election inspector he had in his possession a number of ballots which were to be used in such precinct for voting at such election. It is charged that appellant, then and there while having such ballots in his possession and custody, unlawfully, feloniously and knowingly permitted a large number of such ballots, to wit, about 150, to be then and there unlawfully and feloniously taken and removed from his possession and custody as election official, to which taking and removing, he, the said Huffman, as inspector then and there unlawfully, feloniously and knowingly consented. The foregoing statement of the contents of the indictment is sufficient to disclose the nature of the objection urged against it, and that is the only purpose of the statement.
On behalf of appellant it is asserted that the charge in the indictment is not sufficient to show that appellant "gave or delivered" any of such ballots to any person not entitled to receive them as provided in § 6936 Burns 1914, Acts 1899 p. 157, § 54. There may be serious doubts as to whether the charge in the indictment is sufficient to show that he "gave or delivered" any of the ballots so as to make him criminally liable under the section heretofore mentioned, but this we need not decide. The charge contained in the indictment is clearly sufficient to show that he permitted such ballots to be removed and taken out of his custody and that he consented to such removal. Such a charge is sufficient under another section of our statute. § 6914 Burns 1914, Acts 1899 p. 157, § 32.
An indictment which properly charges an offense under a statute of the State is sufficient to sustain a conviction under such statute, although the prosecuting attorney may have supposed that the offense was covered by a different statute. State v. Vandenburg (1900), 159 Mo. 230, 236, 60 S.W. 79; Williams v. United States (1897), 168 U.S. 382, 18 S.Ct. 92, 42 L.Ed. 509.
The venue is sufficiently stated in the indictment. It is charged that the acts constituting the offense were committed in the city of Terre Haute, Indiana, and the court takes judicial notice that the city of Terre Haute is in Vigo County. Indianapolis, etc., R. Co. v. Lyon (1874), 48 Ind. 119; Volker v. State (1912), 177 Ind. 159, 97 N.E. 422.
The indictment is not defective because it is signed by the special prosecuting attorney appointed by the court instead of by the prosecuting attorney who was duly elected and qualified. In case a prosecuting attorney fails to attend any court of his circuit, the statute expressly authorizes the court to appoint an attorney to discharge the duties of such prosecuting attorney. § 9407 Burns 1914, § 5865 R. S. 1881. The attorney so appointed by the court during the absence of the prosecuting attorney possesses full power to perform all of the duties of such office. Choen v. State (1882), 85 Ind. 209. The record in this case does not show that the special prosecuting attorney who signed the indictment was not appointed by the court in compliance with the statute. The presumption is in favor of the regularity of the proceedings of the trial court.
After the motion to quash was overruled appellant entered a plea of not guilty and a trial resulted in his conviction. The record does not show that he filed any motion for a new trial, and no error is assigned on appeal presenting any action or ruling of the court at or during the trial which is claimed to be prejudicial to appellant. The objections relating to the proceedings which preceded the plea to the merits are technical rather than substantial. Judgment affirmed.
Spencer C. J.--I cannot get my reasoning processes to concur with the majority opinion herein and, while I recognize the futility of a dissenting opinion as being ordinarily only a protest or a specific method of recording a minority vote, yet to my mind the one vital question presented by this record and but slightly touched on in the majority opinion, is so fraught with possibilities...
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