Laycock v. The State
| Decision Date | 09 January 1894 |
| Docket Number | 17,004 |
| Citation | 36 N.E. 137,136 Ind. 217 |
| Parties | Laycock v. The State |
| Court | Indiana Supreme Court |
From the Marion Criminal Court.
Judgment is affirmed.
J. J Rochford, J. T. Reardon and J. Collier, for appellant.
A. G Smith, Attorney-General, J. W. Holtzman, Prosecuting Attorney, and F. T. Edenharter, for State.
James H. Laycock, the appellant in this case, was the defendant in the criminal court of Marion county, charged with embezzling from "Hoosier Lodge, No. 261, Brotherhood of Railroad Trainmen," the sum of two hundred and eighty-nine dollars and thirty cents in money, the property of said lodge, etc.
In the second count of the indictment, it is charged that the money alleged to have been embezzled belonged to one James F. Lee but there is no claim made whatever on the second count of the indictment, and it is not before us for our consideration.
The first count of the indictment, omitting the caption, reads as follows:
This indictment is signed by John W. Holtzman, prosecuting attorney, and indorsed by the foreman as "a true bill."
It is predicated upon section 1944 of the Revised Statutes of the State of Indiana, of 1881, which reads as follows:
"Every officer, agent, attorney, clerk, servant, or employe of any person, or persons, or corporation or association, who, having access to, control, or possession of any money, article or thing of value, to the possession of which his or her employer or employers is or are entitled, shall, while in such employment, take, purloin, secrete, or in any way whatever appropriate to his or her own use, or to the use of others, or knowingly permit any other person to take, purloin, secrete, or in any way appropriate to his or her own use, or to the use of others, any money, coin, bills, notes, credits, choses in action, or other property or article of value belonging to or deposited with, or held by such person or persons, or corporation or association, in whose employment said officer, agent, attorney, clerk, servant, or employe may be, shall be deemed guilty of embezzlement, and, upon conviction thereof, shall be imprisoned in the State prison for not more than fourteen years nor less than two years, fined in any sum not more than one thousand dollars nor less than one dollar, and disfranchised and rendered incapable of holding any office of trust or profit for any determinate period."
The record discloses that on February 27th, 1893, the defendant was arraigned upon the indictment, and entered a plea of not guilty; that on April 20th, 1893, the defendant moved to quash the indictment, which was at the time overruled by the court, and the issue thus joined was submitted to a jury for trial.
On the 21st day of April, 1893, the jury returned into court their verdict in this cause as follows:
"State of Indiana v. James H. Laycock.
On April 28, 1893, the appellant moved for a new trial in said cause for the following reasons, to wit:
First. Because the court erred in overruling defendant's motion to quash the indictment.
Second. Because the verdict of the jury is not sustained by the evidence.
Third. Because the verdict of the jury is contrary to law.
Fourth. Because the court erred in giving to the jury the following instructions, numbered 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10, severally and each of them, which instructions are made part of this motion.
On April 29, 1893, the court overruled the motion, to which ruling the defendant, at the time, excepted. The defendant then moved in arrest of judgment, but the court overruled said motion, to which the defendant excepted, and sixty days were given to present a bill of exceptions. The court thereupon rendered judgment upon the verdict, from which the defendant prosecutes this appeal.
On May 29, 1893, the defendant presented his bill of exceptions, embodying the stenographer's official report of the trial of the cause, which has been properly signed and made a part of the record.
The appellant assigns as errors.
1. The court erred in overruling the defendant's motion to quash the indictment.
2. The court erred in overruling the defendant's motion for a new trial.
3. The court erred in overruling the defendant's motion in arrest of judgment in said cause.
This assignment of error is, in effect, the complaint in the appellate tribunal, and invokes the exercise of its power.
The first specification presents no question for review by us, involving the rulings of the trial court in the matter of which complaint is made.
"In a just sense, the assignment does not and can not in any case controvert the record, inasmuch as it assumes the verity of the record, and implies that error is apparent thereon." Elliott's App. Proced., section 301.
It appears from the record, that the arraignment antedated the motion to quash twenty-one days, and no leave was either asked by or granted the appellant to withdraw his plea of not guilty to the indictment. Leave might have been asked, but in the absence of a showing of a proper cause, the granting or withholding leave to withdraw his plea rested entirely within the discretion of the criminal court. Epps v. State, 102 Ind. 539, 1 N.E. 491.
By section 1762, R. S. 1881, it is enacted that "If the motion to quash be overruled, the defendant shall be arraigned by the reading of the indictment or information to him by the clerk, unless he waive the reading; and he shall then be required to plead immediately thereto," unless further time be given to answer.
This court, in Epps v. State, supra, said: "This section makes it plain that a motion to quash, as well as a demurrer to an indictment, in regular order, precedes the arraignment."
It was, however, intimated by this court, in West v. State, 48 Ind. 483 (484), that perhaps "the court might, in its discretion, have entertained the motion without the withdrawal of the plea."
But there is one question remaining which is fatal to appellant's first assignment of error. It is a well recognized rule of law that a motion to quash an indictment for insufficiency having been overruled by the court and an exception taken to the ruling, the question is directly presented whether the indictment is legally sufficient to sustain a conviction. In the case at bar, no exception seems to have been reserved to the action of the trial court, in overruling the motion to quash the indictment, and inasmuch as the record fails to show that the appellant excepted to the ruling of the court in disposing of the motion to quash, the question of the sufficiency of the indictment does not arise on the record; and hence whatever the facts may be with respect to its alleged insufficiency, we are not permitted to consider it. Of course, a bill of exceptions is not necessary to present to the Supreme Court an exception to the ruling on a motion to quash an indictment. State v. Judy, 60 Ind. 138; State v. Day, 52 Ind. 483; State v. Vanderbilt, 116 Ind. 11, 18 N.E. 266; Gillett Crim. Law, section 1004.
But it is essential that there should be an exception taken at the time the ruling is made.
The third assignment of error is upon overruling the motion in arrest of judgment. This, it seems, was based upon the alleged insufficiency of the indictment, in failing to aver that "Hoosier Lodge, No. 261, Brotherhood of Railroad Trainmen," was organized under the laws of the State of Indiana, or organized under the laws of any other State of the Union, so that upon the face of the indictment it might be determined whether or not the complainant had any legal existence.
Conceding the indictment to have been bad on a motion to quash, we think the question of its want of sufficiency was not reached by the motion in arrest, as that did not constitute one of the two causes for which only the judgment may be so arrested.
The two causes are:
1. The grand jury who found the indictment had no legal authority to inquire into the offense charged, by reason of it not being within the jurisdiction of the court.
2. That the facts stated do not constitute a public offense.
Under the last cause, as we understand it, when the prosecution is founded upon an indictment, the judgment may be arrested for want of material jurisdictional averment in the indictment. It has repeatedly been decided that where an indictment or information does not contain all the essential elements of a public offense, a motion in...
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