Hunt v. State
| Decision Date | 06 December 1927 |
| Docket Number | 24,606 |
| Parties | Hunt v. State of Indiana |
| Court | Indiana Supreme Court |
1. INDICTMENT AND AFFIDAVIT.---Indictment construed most strongly against the pleader.---An indictment, like a complaint, will be construed most strongly against the pleader, and a doubt as to an essential fact necessary to constitute the crime charged, caused by an infirmity or repugnancy, will not be held a burden for the accused to carry, the common-law rule concerning who must bear the burden of an infirmity in pleading not being abrogated by the criminal statute relating to pleading the time of the commission of the offense. p. 552.
2. INDICTMENT AND AFFIDAVIT.---Certainty required in indictment or affidavit.---Substantially the same certainty is required in an indictment or affidavit as in civil proceedings, but no greater certainty is required. p. 553.
3. INDICTMENT AND AFFIDAVIT.---Affidavit charging commission of crime in "nineteen hundred 1923" was insufficient and subject to motion to quash.---An affidavit charging the defendant with committing a criminal offense on the 27th day of October "nineteen hundred 1923" must be construed as alleging its commission in 1900 and it was therefore insufficient and subject to a motion to quash because of stating a time beyond the statute of limitations notwithstanding the provisions of 2225 Burns 1926. p. 553.
4. INDICTMENT AND AFFIDAVIT.---Indictment or affidavit must apprise accused of charge he is to answer so as to enable him to plead former jeopardy.---The allegations of an indictment or affidavit must be stated with such a degree of certainty that the accused may know what he is called upon to answer and so that he may plead a conviction or acquittal thereunder in bar of another prosecution for the same offense. p. 553.
5. INDICTMENT AND AFFIDAVIT.---Statement of date of offense in words prevails over figures in case of repugnancy.---Where the date of the commission of the offense charged is expressed by both words and Arabic numerals, and one expression of the date is repugnant to the other, the words should prevail over the figures, notwithstanding the provisions of 2225 Burns 1926 as to the use of figures in an indictment. p. 553.
6. INDICTMEN AND AFFIDAVIT.---Effect of two repugnant allegations of date of commission of crime.---Where an indictment or affidavit contains two repugnant statements of the date of the commission of the offense charged, one neutralizes the other, and there is no statement of such time. p. 555.
7. INDICTMENT AND AFFIDAVIT.---Indictment or affidavit containing two repugnant allegations of date of offense is subject to motion to quash.---An indictment or affidavit must allege facts showing that the crime was committed within the period fixed by the statute of limitations, and where there are two repugnant allegations as to the time of the commission of the offense, they neutralize each other and no time is stated, thus rendering the indictment or affidavit subject to a motion to quash on the ground that the facts stated do not constitute a public offense (cl. 2, 2227 Burns 1926). p. 555.
From Vanderburgh Circuit Court; Philip C. Gould Judge.
Clarence Hunt was convicted of operating a motor vehicle while intoxicated, and he appeals.
Reversed.
William D. Hardy, for appellant.
U. S Lesh, Attorney-General, Arnet B. Cronk and Carl Wilde, for the State.
OPINION
The question here is whether the facts stated in the affidavit which sought to charge the offense, constituted a public offense; the alleged infirmity being, that the time of the offense was laid in two different years, one of which was without the statute of limitations.
So much of the affidavit (omitting the caption) as will present the alleged error is: "Ralph Plummer being duly sworn upon his oath says that Clarence Hunt on or about the 27th day of Oct. A. D. nineteen hundred 1923, at said county, . . . did then and there," etc. Appellant moved to quash the affidavit for the cause that the facts stated do not constitute a public offense. (§ 2227 Burns 1926, Acts 1905, ch. 169, § 194 p. 626).
An indictment, in criminal procedure, as a complaint which alleges a civil right, will be construed most strongly against him who pleads it; and a doubt as to an essential fact, necessary to state the crime, caused by an infirmity of repugnancy will not be held a burden for the accused to carry. The rule of the common law concerning who must bear the burden of an infirmity of pleading, if it appertains to the state, is not abrogated by the statute which had to do with pleading the time of the commission of an offense. (§§ 2204 and 2225 Burns 1926.) Walker v. State (1864), 23 Ind. 61; Pond, Admr., v. Sweetser (1882), 85 Ind. 144, 150; Littell v. State (1893), 133 Ind. 577, 582, 33 N.E. 417; Payne v. Neuval (1908), 155 Cal. 46, 50, 99 P. 476. The commission of the offense is laid in two different years, one of which is alleged by written words, the other by Arabic numerals. It has long been the general rule, which pertains to bills and notes, that where the amount stated in figures, differs from the amount in words in the body of the instrument, the written words control. Story, Promissory Notes § 21; Bradshaw v. Bradbury (1876), 64 Mo. 334, 336.
A rule, which has relation to criminal law and procedure, and concerns a criminal pleading, the purpose of which is to challenge the life or liberty of a citizen, ought not to be less strict than a rule of pleading in civil law and procedure. Speculation upon this comparison is futile, under the decisions of the courts of appeal, which have held generally that the same, or substantially the same, but no greater, certainty is required in criminal as in civil pleadings. Dukes v. State (1858), 11 Ind. 557, 562; State v. Ensley (1912), 177 Ind. 483, 501, 97 N.E. 113, Ann. Cas. 1914D 1306, 97 N.E. 113.
Applying the above rule of pleading, the written words which state the year in which the offense was committed, and which laid the crime outside of the statute of limitations, control.
Approaching the question from another angle, it may be premised as a matter of law that the allegations necessary to the common intent, as expressed in the language of the indictment, though stated with such a degree of certainty that the court may pronounce judgment upon a conviction according to the right of the case (§ 2224, cl. 5, Burns 1926), must be so certain, that the accused may know therefrom the distinct charge against him. Respublica v. Newell (1802), 3 Yeates 407, 416, 2 Am. Dec. 381; and that he may plead a conviction or acquittal thereunder in bar of another action upon the same offense. Williams v. State (1919), 188 Ind. 283, 123 N.E. 209, and that he may know what he is called upon to answer. Mayhew v. State (1920), 189 Ind. 545, 553, 128 N.E. 599. By the common law, an indictment is a written accusation (IV Blackstone, Comm. 302); and by statute in England (4 Geo. II, c. 26 and 6 Geo. II, c. 14) all indictments must be in words at length. Neither could any figures be allowed in indictments, but all numbers must be expressed in words at length. 2 Hale 170, 146; Chitty, Crim. Law (4th Am. Ed.) 170 (*176); Finch v. State (1843), 6 Blackf. (Ind.) 533; See Berrian v. State (1849), 22 N.J.L. 9. Although by statute (Acts 1905 p. 625, § 192, § 2225 Burns 1926), no affidavit shall be deemed invalid and quashed for the "defect." this section of the enactment is not so broad that it covers the whole subject-matter of the question, whereby it may be implied that the common-law rule is abrogated, as in the case at bar, where the date is expressed by both writing and Arabic numerals, and thereby the numerals shall stand and prevail over the written words. Unless the date of the commission of the offense, as alleged by Arabic numerals, prevails over the date in writing, as a matter of law, or vice versa, the accused may not know with certainty what he is called upon to answer. Story is in accord with Marius in concluding that where there is a repugnancy between the written words of a number and the number expressed in figures, that, founded upon common sense and experience, a person is more apt to commit error in writing a figure than in writing a word. Story, Promissory Notes (6th ed.) 24, citing Marius, Bills 33, 34. The court is of the opinion that where the date of the commission of the offense, averred in an indictment, is expressed by both written words and Arabic numerals, and one expression of the date is repugnant to the other, the one in written words should prevail. Applied to the case at bar, the time of the commission of the offense is without the statute of limitations.
If the rule concerning repugnancy in relation to bills is inapplicable to a repugnancy in an indictment, yet by virtue of the statute (§ 2225 Burns 1926), if the date of the commission of the offense was represented by figures alone, the indictment would be good as against the attack by motion to quash because of insufficient facts to state the time of the commission of the offense. Hampton v. State (1856), 8 Ind. 336. A lenient construction of the statute, in an indictment where the date of the offense is alleged by both written words and figures, where there is no repugnancy, is that the date represented by figures, stands upon an equal footing with the date alleged in written words. Applying this reasoning to this affidavit, where the date of the commission of the offense alleged in written words, is not in harmony with the allegation of the time by figures, but is repugnant, if the figures are to stand upon an equal footing with the written...
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