Katzen v. State

• Decision Date: 16 November 1922
• Docket Number: 24,031
• Citation: 137 N.E. 29,192 Ind. 476
• Parties: Katzen v. State of Indiana
• Court: Indiana Supreme Court

137 N.E. 29

192 Ind. 476

Katzen v. State of Indiana

No. 24,031

Supreme Court of Indiana

November 16, 1922

From Marion Criminal Court (52,053); James A. Collins, Judge.

Prosecution by the State of Indiana against Joe Katzen. From a judgment of conviction, the defendant appeals.

Affirmed.

Henry Abrams, Jackiel W. Joseph, Isidor Wulfson, R. L. Ewbank and Edgar A. Brown, for appellant.

U. S Lesh, Attorney-General, and Sumner Kenner, for the state.

OPINION

Travis, J.

Appellant appeals from the judgment, which followed the finding of the court, that he was guilty of having received stolen goods, as charged in the indictment against him, and assigns as error the action of the trial court in overruling his motion to quash the indictment, for the reason: "That said indictment does not show that the grand jurors of Marion county were duly sworn and impaneled."

Appellant by his brief, very clearly states the question before this court to be decided, viz.: "The question before this court for decision is whether or not in a criminal case the record must show, somewhere, either in the caption or in the indictment, that the grand jury returning the indictment, upon which defendant was convicted, was legally impaneled or sworn."

The order of the court in relation to the return of the indictment in open court, and that part of the indictment which relates to the question predicated upon the assigned error, are as follows:

"BE IT REMEMBERED, that among the records of the criminal court of Marion county, Indiana, are the following in the cause of:

STATE OF INDIANA vs. JOE KATZEN, * * *

No. 52053

"BE IT FURTHER REMEMBERED, that heretofore to wit: On the 5th day of May, 1921, the Grand Jurors in and for the County of Marion, returned into open court an indictment against the said defendants, which indictment was properly endorsed by Jacob Jacquart, Foreman, and filed by Richard V. Sipe, Clerk and reads as follows, to wit:

"THE STATE OF INDIANA, MARION COUNTY--SS: CRIMINAL COURT OF MARION COUNTY.

THE STATE OF INDIANA vs. JOE KATZEN, * * *

INDICTMENT FOR RECEIVING STOLEN GOODS.

The Grand Jurors for the County of Marion and State of Indiana, upon their oaths, present that," etc.

The indictment purports, upon its face, to have been returned by the grand jury of the county of Marion, and it is substantially in the form provided by statute. § 2041 Burns 1914, Acts 1905 p. 584, § 170.

The motion to quash an indictment presents no question concerning the qualifications of its grand jurors, or of the members thereof having been duly and legally charged and sworn, where such indictment purports to have been returned by a legal grand jury. Donahue v. State (1905), 165 Ind. 148, 74 N.E. 996; State v. Jackson (1918), 187 Ind. 694, 121 N.E. 114.

The face of the indictment must disclose its infirmities. Defects in criminal procedure other than those to which the indictment is subject by statute, cannot be pleaded by the motion to quash. Pittsburgh, etc., R. Co. v. State (1912), 178 Ind. 498, 99 N.E. 801; State v. Jackson, supra; § 2065 Burns 1914, Acts 1905 p. 584, § 194.

The pleading known as the motion to quash an indictment is statutory and must be limited by such statute. Appellant's question for decision does not come under the provision of this statute.

The record will not cure nor invalidate an indictment under the attack of a proper motion to quash. § 2065 Burns 1914, supra.

Motions to quash point only to the sufficiency of the pleading attacked, the same as demurrers test pleadings in civil actions. Davis...