Hunt v. State

Decision Date06 December 1927
Docket NumberNo. 24606.,24606.
PartiesHUNT v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Vanderburgh Circuit Court; Philip C. Gould, Judge.

Clarence Hunt was convicted of operating a motor vehicle while in an intoxicated condition, and he appeals. Reversed.

W. D. Hardy, of Evansville, for appellant.

Creighton H. Williams, of Ft. Wayne, for the State.

TRAVIS, J.

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 constitutea public offense. Section 2227, Burns' 1926; Acts 1905, c. 169, § 194, p. 626.

[1][2][3] 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 or 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. Sections 2204 and 2225, Burns' 1926; Walker v. State (1864) 23 Ind. 61;Pond, Adm'r, et al. v. Sweetser et al. (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 on Promissory Notes, § 21; Bradshaw et al. 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 (1859) 11 Ind. 557, 562, 71 Am. Dec. 370;State v. Ensley (1912) 177 Ind. 483, 501, 97 N. E. 113, Ann. Cas. 1914D, 1306.

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.

[4] 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 (section 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 [Pa.] 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 (4 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. 533. See Berrian v. State, 22 N. J. Law, 9.

[5] Although by statute (Acts 1905, p. 625, c. 169, § 192; section 2225, Burns' 1926) no affidavit shall be deemed invalid and quashed for the defect: “Third. That dates and numbers are represented by figures”-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 on 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.

[6] If the rule concerning repugnancy in relation to bills is inapplicable to a repugnancy in an indictment, yet by virtue of the statute (section 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 words, one offsets the other, one neutralizes the other, the two are in a balance; then, because of such repugnance, there is no assertion of the time, even necessary to bring the alleged crime within the period of limitations. Keller v. State (1875) 51 Ind. 111, 118;State v. Price (1922) 90 W. Va. 365, 110 S. E. 819; The King v. Stevens & Agnew (Eng. 1804) 5 East's Report, 244; Harwell v. State (Tex. Cr. App. 1901) 65 S. W 520;Combs v. Commonwealth (1905) 119 Ky. 836, 840, 84 S. W. 753, 27 Ky. Law Rep. 273; Hawkins, Pleas of the Crown (8th Eng. Ed.) Book 2, c. 25, § 78.

[7] It is unnecessary to decide in this case whether or not the time of the commission of the offense is a material and essential element of the offense, even to show the act is not barred by limitation of time, and the point is not decided. Disregarding the opinion of the court that one allegation neutralizes and offsets the other, and therefore there is no allegation as to time, it seems to be a well-settled rule that the precise time of the commission of the offense need not be alleged in an indictment, if the precise time is not a material and essential element of the offense, but the alleged offense must be shown by the indictment to have been committed within the time limited to legally begin the action. Section 2052, Burns' 1926; Acts 1905, p. 584, c. 169, § 23; State v. Noland (1867) 29 Ind. 212;State v. Windell (1878) 60 Ind. 300;Hutchinson v. State (1878) 62 Ind. 556;Fowler v. State (1882) 85 Ind. 538, 541;Murphy v. State (1886) 106 Ind. 96, 5 N. E. 767, 55 Am. Rep. 722;State v. Hendricks (1802) 1 N. C. 532. King v. Stevens, supra; State v. Price, supra; 1 Wharton, Cr. Proc. (10th Ed.) § 179, p. 227; Clark's Cr. Proc. (2d Ed.) § 95, pp. 280, 282; 1 Chitty Cr. Law (4th Am. Ed.) 223; 31 C. J. 681, 684.

It is self-evident that the necessary fact of the allegation of the time of the commission of the offense was lacking in the indictment. Wherefore the court finds that appellant's assigned error, based upon the court's ruling in overruling his motion to quash the affidavit, ought to be sustained. The cause is remanded, and the trial court is ordered to sustain defendant's motion to quash the affidavit.

[8] It would be a useless thing to discuss and decide the other alleged errors (Willets v. Ridgway [1857] 9 Ind. 267), for the reason that another indictment or affidavit cannot be filed within the period of limitation.

Judgment reversed.

GEMMILL, J., dissents.

MARTIN, J. (dissenting).

I respectfully dissent from the judgment herein.

(1) The purpose of the law in requiring the date of an alleged offense to be placed in the indictment or affidavit is to apprise the defendant of the time of the unlawful act charged against him so that he may prepare his defense, and to show that the offense is not barred by the statute of limitations. I believe that the affidavit here accomplishes these things and is sufficient, and, under the following statutes, is good as against a motion to quash:

“The indictment or affidavit is sufficient if it can be understood therefrom: *** Fifth- That the offense charged is stated with such a degree of certainty that the court may pronounce judgment upon a...

To continue reading

Request your trial
3 cases
  • Hoy v. State
    • United States
    • Indiana Supreme Court
    • December 11, 1947
    ... ... appellant's motion for new trial also questions the ... sufficiency of the evidence to sustain the verdict. Since for ... error already considered in this opinion, this cause must be ... reversed and a new trial ordered, there is no requirement ... that this court review the evidence. Hunt v. State, ... 1927, 199 Ind. 550, 159 N.E. 149; Newbauer v. State, ... 1928, 200 Ind. 118, 161 N.E. 826 ...           [225 ... Ind. 439] Judgment reversed and new trial ordered ...          GILKISON, ... J., concurs in this opinion ...          YOUNG, ... ...
  • Short v. State
    • United States
    • Indiana Supreme Court
    • October 26, 1954
    ...accused and it will be construed most strongly against the state. McNamara v. State (1932), 203 Ind. 596, 181 N.E. 512; Hunt v. State (1927), 199 Ind. 550, 159 N.E. 149; Littell v. State (1893), 133 Ind. 577, 33 N.E. 417.' Bruce v. State, 1952, 230 Ind. 413, 417, 104 N.E.2d 129, 'The rules ......
  • Hunt v. State
    • United States
    • Indiana Supreme Court
    • December 6, 1927

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT