Johns v. The State

• Decision Date: 18 November 1902
• Docket Number: 19,827
• Citation: 65 N.E. 287,159 Ind. 413
• Parties: Johns et al. v. The State
• Court: Indiana Supreme Court

65 N.E. 287

159 Ind. 413

Johns et al. v. The State

No. 19,827

Supreme Court of Indiana

November 18, 1902

From Franklin Circuit Court; F. S. Swift, Judge.

John S Johns and another were convicted of bunko-steering, and they appeal.

Reversed.

Reuben Conner, Lon Conner, J. B. Kidney, B. K. Elliott, W. F Elliott and F. L. Littleton, for appellants.

W. L Taylor, Attorney-General, C. C. Hadley and Merrill Moores, for State.

OPINION

Gillett, J.

The appellants, John S. Johns and John P. Haughn, appeal to this court from a judgment convicting them of a violation of § 2178 Burns 1901. That statute is in the words following: "Whoever allures, entices, or persuades another to any place upon any pretense, and then, by duress or fraud, compels such person to win or lose or advance or loan money, or execute or give his note or other obligation either for money or anything of value, or to part with anything of value, upon any game or wager, or by means of any trick, device, or artifice,--is guilty of bunko-steering, and, upon conviction thereof, shall be imprisoned in the State prison not more than fourteen years nor less than two years; and all persons present at such place at such time, and engaged therein, shall be prosecuted, tried, and punished for such offense as principals."

The information, aside from the caption, is as follows: "George L. Gray, prosecuting attorney in and for the thirty-seventh judicial circuit of the State of Indiana, now gives the Franklin Circuit Court to understand and be informed that John P. Haughn, Albert H. King, John S. Johns, and J. C. Stillson, of said Franklin county, on the 1st day of June, 1901, at and in the county of Franklin, in the State of Indiana, did then and there unlawfully and feloniously allure, entice, and persuade one Edward W. Duvall to go to a certain place in said county, to wit, to the public highway extending southwardly from the Brookville and Whitcomb free gravel road through sections twenty-one and twenty, in township number nine, range two west, to the east fork of the Whitewater river, upon the pretense that two men, to wit, Perry Ballard and J. C. Stillson, would then and there run a foot-race for a wager of $ 1,700, and said John P. Haughn, Albert H. King, John S. Johns, and J. C. Stillson did then and there unlawfully and feloniously, by duress and fraud, compel the said Edward W. Duvall to lose and part with a large amount of money, to wit, the great sum of $ 1,700, upon a certain game, to wit, a foot-race between two men. That all of said defendants, to wit, John P. Haughn, Albert H. King, John S. Johns, and J. C. Stillson, were then and there present at said place and engaged in so compelling said Edward W. Duvall to so lose and part with said sum of money, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana, as Edward W. Duvall has complained on oath. [Signed] George L. Gray, prosecuting attorney."

The appellants moved to quash the information, but their motion was overruled, and they excepted. An assignment of error brings said ruling under review.

If a criminal statute provides a definition of an offense, and states specifically what acts constitute it, it will suffice to charge the offense in the language of the statute. State v. M'Roberts, 4 Blackf. 178; Malone v. State, 14 Ind. 219; Payne v. State, 74 Ind. 203; Howard v. State, 87 Ind. 68. But where the definition of the offense contains generic terms, it is not sufficient to allege the species of the crime, but the pleader must descend to particulars. Bowles v. State, 13 Ind. 427; Malone v. State, supra; State v. Bruner, 111 Ind. 98, 12 N.E. 103; United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; United States v. Carll, 105 U.S. 611, 26 L.Ed. 1135; Boyd v. Commonwealth, 77 Va. 52; State v. Graham, 38 Ark. 519; Burch v. Republic, 1 Tex. 608; Kerry v. State, 17 Tex. Ct. App. 178, 50 Am. Rep. 122.

Serjeant Hawkins, in his Pleas of the Crown (8th ed.), Vol. 2, Chap. 25, § 111, said: "Neither doth it seem to be always sufficient to pursue the very words of the statute, unless by so doing you fully, directly, and expressly allege the fact, in the doing or not doing whereof the offense consists, without the least uncertainty or ambiguity." In United States v. Simmons, 96 U.S. 360, 362, 24 L.Ed. 819, the Supreme Court of the United States stated the rule and the exception in the following language: "Where the offense is purely statutory, having no relation to the common law, it is, 'as a general rule, sufficient in the indictment to charge the defendant with acts coming fully within the statutory description, in the substantial words of the statute, without any further expansion of the matter.' 1 Bishop, Crim. Proc., § 611, and authorities there cited. But to this general rule there is the qualification, fundamental in the law of criminal procedure, that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, to the end that he may prepare his defense, and plead the judgment as a bar to any subsequent prosecution for the same offense. An indictment not so framed is defective, although it may follow the language of the statute." In a later case the same court said: "A rule of criminal pleading, which at one time obtained in some of the circuits, and perhaps received a qualified sanction from this court in United States v. Mills, 32 U.S. 138, 7 Pet. 138, 8 L.Ed. 636, that an indictment for a statutory misdemeanor is sufficient if the offense be charged in the words of the statute, must under more recent decisions, be limited to cases where the words of the statute themselves, as was said by this court in United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135, 'fully, directly, and expressly, without any uncertainty and ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.'" Evans v. United States, 153 U.S. 584, 587, 14 S.Ct. 934, 38 L.Ed. 830.

As evincing the position of this court upon the subject, both in its early history and quite recently, we quote the following from the opinion in the case of State v Darlington, 153 Ind. 1, 2, 53 N.E. 925: "It is generally true, as a rule of criminal pleading, that, where the principal act or acts constituting the offense are clearly defined by the statute, it is sufficient to charge the offense in the language of the statute. But, as was said in ...