Kreig v. State

• Decision Date: 03 May 1934
• Docket Number: No. 25873.,25873.
• Citation: 206 Ind. 464,190 N.E. 181
• Parties: KREIG v. STATE.
• Court: Indiana Supreme Court

206 Ind. 464

190 N.E. 181

KREIG

v.STATE.

No. 25873.

Supreme Court of Indiana.

May 3, 1934.

Appeal from Hancock Circuit Court; Arthur C. Van Duyn, Judge.

Floyd M. Kreig was convicted of conspiracy to commit felony, and he appeals.

Reversed, with instructions.

Robert F. Reeves, of Greenfield, and Ralph E. Jones and Merle N. A. Walker, both of Indianapolis, for appellant.

James M. Ogden, Atty. Gen., and V. Ed. Funk, Deputy Atty. Gen., for the State.

FANSLER, Judge.

Appellant was charged by indictment and convicted of conspiracy to commit a felony. He assigns as error the overruling of his motion to quash the indictment.

The indictment covers more than eleven printed pages, and hence we will not set it out in full. It alleges in substance that appellant and another unlawfully combined and conspired to unlawfully and feloniously represent and pretend to divers citizens of Hancock county, many of whose names are unknown to the grand jurors, for the purpose of obtaining their signatures to divers numbers of written instruments, contracts, notes, and checks, many of which have not been seen and are not in the possession of the grand jurors, and for the purpose of cheating and defrauding the public generally, and for the purpose of procuring and obtaining the signatures of divers citizens of Hancock county to divers written instruments, and for the purpose of obtaining cash, money, and things of value from divers citizens of Hancock county, and from the public generally, did then and there falsely represent and pretend: That appellant had a contract with the Indiana Electric Corporation to supply him with current for a line to be constructed in Hancock county; that he had a contract for current with the company which supplied the town of Carthage; that he had a franchise from the Public Service Commission to construct an electric line upon public highways of the county, and that no other person could obtain a franchise; that he had a contract with the Union Traction Company of Indiana for electric power; that he had a contract with the company which furnished power to the town of Kennard, Ind.; that he was part owner and held stock in the company which supplied electrical current to the town of Kennard; that the Rural Power & Light Company was the same company which supplied electrical current to the town of Kennard; that he had a contract for power with a Kentucky company; that he had a contract for power with a company whose plant was located in Terre Haute; that the Rural Power & Light Company alreadyhad a power line constructed from the city of Terre Haute to the town of Kennard; that appellant was manager of the Rural Power & Light Company, a corporation organized under the laws of the state of Kentucky; that he had a contract with the city of Greenfield for electrical current; that he owned an electric cable from the city of Terre Haute to the town of Kennard; that he had a written contract or written authority from the Public Service Commission which provided that, if he failed to complete the construction of the proposed electric line, the same would be constructed without additional expense by the Public Service Commission; that he had written plans and specifications which had been prepared, authorized, and signed by a member of the Public Service Commission; that he was financially able to build and construct an electric line to the homes and residences of divers citizens of the county, and to carry out his contracts; that he owned the electric power to be used in the construction of an electric line upon divers highways, and had sufficient money and cash to construct numerous electric lines in the county to connect and unite with other electric lines which he then and there owned and which were charged with electrical current which he then and there owned; that in truth and in fact the representations were all false and were made for the purpose of inducing the people generally to issue and execute divers contracts, notes, and checks; and that divers citizens of the county, relying upon the representations of appellant, and believing the same to be true, were led and induced to execute certain written instruments, contracts, notes, and checks, and to pay out cash and things of value, and appellant did thus receive and obtain divers written instruments, contracts, notes, and checks from divers citizens of the county, to their injury, contrary to the form of the statutes.

An indictment for conspiracy to commit a felony must describe the intended felony with the same certainty and particularity as an indictment for committing such felony. Landis v. State, 196 Ind. 699, 149 N. E. 438;Genett v. State, 197 Ind. 105, 149 N. E. 894; Eubank's Criminal Law (2d Ed.) § 1583.

An indictment for procuring the execution of a written instrument by false pretense must set out a copy of the instrument. Bonnell v. State, 64 Ind. 498;Johnson v. State, 75 Ind. 553;State v. Styner, 154 Ind. 131, 56 N. E. 98.

An indictment must allege the ownership of the property fraudulently procured or explain the absence of such averment. Green v. State, 157 Ind. 101, 60 N. E. 941.

In Johnson v. State, supra, it is held that an indictment charging the obtaining of property under false pretense must specify the pretense, and the goods obtained, and from whom obtained.

The names of the persons against whom the conspiracy was directed are not set out in the indictment, although not all of their names were unknown to the jurors. Appellee cites three Indiana cases which it is claimed sustain the contention that this is not fatal to the indictment.

In the first case cited, McKee v. State, 111 Ind. 378, 12 N. E. 510, 511, it is said: “Undoubtedly, if the nature of the conspiracy is such as to define the particular persons against whom it is directed, or if, from the commission of overt acts, the conspirators have actually accomplished their fraudulent purpose, so that the names of the victims are ascertainable by the pleader, the better method would be to allege the names of those actually defrauded. The necessities of the case may often, however, require that the general form of pleading adopted in the indictment before us should be sustained. The indictment was not bad for the reasons urged against it.”

The indictment there under consideration did not charge a completed felony, but only the formation of a conspiracy to commit a felony, and hence it might have been impossible to name specific persons against whom the conspiracy was directed.

In Williams v. State, 188 Ind. 283, 123 N. E. 209, 212, the next case cited by appellee, it is said: “In McKee v. State (1887) 111 Ind. 378, 12 N. E. 510, it is said: ‘The authorities abundantly settle the proposition that an indictment is not objectionable which charges that the object of the conspiracy is to defraud many persons, not capable of being resolved into individuals, or the public generally, instead of certain named individuals. 2 Bishop, Crim. Law, § 209; 2 Whart. Crim. Law, § 1396.’ It does not necessarily follow, from the fact that money was actually paid, that the grand jurors knew the names of the persons contributing the same, or that the evidence before them on that subject was satisfactory. In such cases the general form of pleading has been recognized and sustained. McKee v. State, supra.”

In the other case cited, Miller v. State, 193 Ind. 216, 139 N. E. 306, the indictment alleges a sale of liquor “to persons to this affiant unknown.”

These cases can only be construed as holding that, where the felony is not charged to have been completed, and the conspiracy was intended to operate upon no particular person, but upon any person who could be made a victim, or in other cases where it is apparent that the names of those whom it was intended to defraud may not be known, or cannot be known, to the grand jury, the names of those intended to be defrauded may be omitted. The cases cannot be construed as holding, nor are we...