Lynn v. State
| Decision Date | 28 December 1934 |
| Docket Number | 26200 |
| Citation | 193 N.E. 380,207 Ind. 393 |
| Parties | LYNN v. STATE |
| Court | Indiana Supreme Court |
W. D Hardy, ov Evansville, for appellant.
Philip Lutz, Jr., Atty. Gen., and Joseph P. McNamara, Deputy Atty Gen., for the state.
Appellant in a separate trial, was convicted upon an affidavit in two counts; the first charging conspiracy to commit the felony of perjury, and the second charging perjury. The error assigned and presented upon appeal presents for review the action of the trial court in overruling appellant's motion to quash each count of the affidavit.
Among the grounds for motion to quash was that the facts stated in the first and second counts of said affidavit do not constitute a public offense, and appellant submits that his motion should have been sustained because the affidavit did not bear the indorsement, 'Approved by me,' signed by the prosecuting attorney, as required by section 9-909, Burns' Inc. Ann. St. 1933, section 2151, Burns' Ann. Ind. St. 1926, Acts 19058 c. 169, § 119, pp. 584, 611. In Gunderman v. State (1934) 191 N.E. 338, 341, this court considered the acts of the General Assembly providing for prosecutions by affidavit in circuit and criminal courts, and recognized ' a legislative intent to require that prosecutions in the criminal or circuit court be based upon affidavits which have the sanction of the personal approval of the prosecuting attorney.' It frequently has been held that the lack of the signed indorsement of the prosecuting attorney's approval upon such affidavit will require the trial court to sustain a motion to quash in which it is alleged that the facts stated in the affidavit do not constitute a public offense. Wischmeyer v. State (1929) 200 Ind. 512, 165 N.E. 57; Brogan v. State (1927) 199 Ind. 203, 156 N.E. 515, 518, and cases there cited.
Appellee contends that this is not grounds for reversal, but 'is merely a technical formality which could have been corrected in the trial court before trial if the court's attention had been directed thereto'; that, in any event, to be available on appeal such error 'must have been specifically and directly pointed out to the trial court.' And appellee points out that the 'motion to quash does not specify this as one of its grounds for quashing in the instant case.' The grounds for motion to quash are prescribed by statute. [1] In the case of Brogan v. State, supra, it was pointed out in the dissenting opinion of Martin, J., that the motion to quash was upon the second and fourth of the statutory causes and that 'nothing appears in this record which shows whether or not the lack of the prosecutor's indorsement of approval was brought to the attention of the trial court nor that the question was not first raised on appeal.' Nevertheless this court held that 'as the amended affidavit was not approved by the prosecuting attorney, it was error for the lower court to overrule the motion to quash same.'
Appellee is not warranted in relying upon Tow v. State (1926) 198 Ind. 253, 151 N.E. 697, to support his contention that no question is presented to this court, as to error of the trial court in overruling the motion to quash, for the reason that the record fails to show that the trial court's attention was 'affirmatively and specifically directed to the absence of the words 'Approved by me.' The opinion in Tow v. State, supra, clearly shows that the motion to quash did not state the statutory ground, 'that the facts stated in the indictment or affidavit do not constitute a public offense,' which challenges the affidavit in the trial court for lack of the prosecutor's indorsement of the words, 'Approved by me.' The rule established by the decisions of this court is that a motion to quash upon the ground that the affidavit does not state a public offense presents to the trial court the question as to whether the affidavit has been indorsed, 'Approved by me,' followed by the signature of the prosecuting attorney.
We are not impressed by the contention of the appellee that the failure of the prosecuting attorney to indorse the affidavit, 'Approved by me,' and to sign the indorsement, is an omission of a mere technical formality.
The procedure, provided by sections 9-908 and 9-909, Burns' Ann. St. 1933 (), which authorizes prosecutions to be commenced in circuit and criminal courts by filing an affidavit bearing the prosecuting attorney's signed indorsement of his approval, is the statutory substitute for an earlier procedure which authorized the commencement of prosecutions by information supported by affidavit. [2] While the early statute provided [3] that the affidavit could be made by any person who 'has knowledge of the commission of any offense' and was to be filed with the clerk or deposited with the prosecuting attorney, the information was to be made and filed by the prosecuting attorney. The evident purpose of the General Assembly in providing the present method of instituting a prosecution by the filing of an approved affidavit was to relieve the prosecuting attorney of the duty of preparing and filing an information. But in relieving him of that necessity, the General Assembly imposed upon him the duty of examining, approving, and in effect adopting as his own, the affidavit presented for filing, in order to commence a prosecution. Needless to say, it is unfortunate that this court should be compelled to reverse a case simply because the prosecuting attorney has failed to formally place his indorsement upon the affidavit; but this court cannot presume to treat as a mere formal technicality an act which is required of a public officer by an unqualified mandate of the General Assembly. We think it is obvious that the purpose of this requirement was to make sure that the prosecuting attorney would carefully examine the contents of the affidavit. It certainly was not contemplated by the General Assembly that the public official charged with the serious duties of the office of prosecuting attorney would stultify himself by a written declaration that he is approving an affidavit when he has not in fact examined and approved it. From our point of view the indorsement of the prosecuting attorney is not a mere identification, but is intended to be uncontrovertible evidence that he does in fact approve the contents of the affidavit.
The motion to quash should have been sustained for the second of the grounds prescribed by statute.
Appellant's fifth ground of motion to quash is that the first count does not state the offense with sufficient certainty in that 'there is no sufficient description in said count in said affidavit of the proceedings wherein the oath was administered and upon which a charge of perjury for falsely testifying would lie.'
While it is required that a charge of conspiracy to commit a felony must set out the felony which was the object of the conspiracy, it is not essential to the consummation of the offense of conspiracy that the purposed felony was in fact committed. Under the statute defining conspiracy to commit a felony [4] and defining perjury [5] the offense of conspiracy to commit perjury may be committed even though none of the steps which are essential elements of the offense of perjury have been taken. Consequently, in charging the offense of conspiracy to commit perjury it is unnecessary to allege that the proceeding in which the false testimony was intended to be given was pending at the time the unlawful agreement was made. The first count of the affidavit was not subject to a motion to quash for uncertainty for the cause set out in the fifth ground of appellant's motion to quash.
Appellant also moved to quash both counts of the affidavit for lack of certainty on the additional ground that it does not sufficiently appear in the first count of the affidavit that the testimony conspired to be given, as alleged, was false; and that it does not sufficiently appear in the second count of the affidavit that the testimony given, as alleged therein, was false.
In this respect the first count alleged that the defendants would 'unlawfully, feloniously, wilfully, corruptly, knowingly, falsely, wickedly, designedly and intending the due course of justice to pervert, depose and give evidence to and before said court in said cause between the State of Indiana and Bud McGill * * * to the effect and in substance following: 'That said pistol, commonly called a revolver, loaded with gunpowder and leaden balls, was found in an open field near Covert Avenue in said Vanderburgh County, Indiana, at a point near where the said Bud McGill was shot by the said Ernest Lynn on the said 25th day of May, A. D. 1931, during the perpetration, by the said Bud McGill, of said Robbery on the said Ernest Lynn; that the said testimony so to be given in evidence by the said (defendants) and each of them as aforesaid, was to be false in that the said pistol referred to in said testimony was found at and in the home of the said Bud McGill in the City of Evansville, said County and State, as they, and each of them then and there and at all times mentioned in this affidavit, well knew.' The facts concerning the testimony given are alleged in the second count with substantially the same particularity as in the first, and both counts sufficiently allege the falsity of such testimony.
Appellant contends on appeal that the affidavit is bad for duplicity in that the first count charges a conspiracy to commit six separate offenses and the second count charges the commission of six separate offenses; that the offense of perjury is necessarily...
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State ex rel. Savery v. Criminal Court of Marion County, Ind., Div. No. 1
...absolute the discretion granted by statute to judicial officer may be (as in the case of the rrosecuting attorney), see Lynn v. State, 1934, 207 Ind. 393, 193 N.E. 380; State ex rel. Williams v. Ellis, 1915, 184 Ind. 307, 112 N.E. 98. Opinions of Attorney General, 1938, p. The court, in the......