Masterson v. The State
| Decision Date | 06 March 1896 |
| Docket Number | 17,675 |
| Citation | 43 N.E. 138,144 Ind. 240 |
| Parties | Masterson v. The State |
| Court | Indiana Supreme Court |
From the Kosciusko Circuit Court.
Judgment affirmed.
Wood Royse and H. R. Robbins, for appellant.
W. A Ketcham, Attorney-General, L. B. McKinly, L. R. Stookey and H. s. Biggs, for State.
Appellant was tried and convicted upon an affidavit and information charging him with the crime of perjury. There was a motion to quash the information, which was overruled. A motion for a change of venue was filed by appellant, which was overruled.
Appellant's motion for a new trial was also overruled.
The first error assigned is that the court erred in overruling the motion to quash the information.
The first objection urged to the information is that there is nothing in the record showing that the affidavit and information were filed in term time, and that, therefore, the court below had no jurisdiction.
It is provided by section 1679, R. S. 1881, section 1748, R. S. 1894, that "Whenever a public offense has been committed and the party charged is not already under indictment therefor, and the court is in session, and the grand jury has been discharged for the term, the same may be prosecuted in the circuit and criminal courts by information based upon affidavit." Affidavits and informations charging felonies cannot, therefore, be filed in vacation, but it is not required that they be filed while the court is in session. It is sufficient if they are filed with the clerk during term time, that is, at any time after the commencement of a term of court and before its final adjournment. It is not necessary that the court be actually open for the transaction of business. Stefani v. State, 124 Ind. 3, 24 N.E. 254.
It appears from the record that the affidavit charging appellant with perjury was sworn to on the 26th of February, 1895, and that said affidavit and the information thereon were filed during the February term 1895 of said court, and that the trial of said cause was commenced on March 5, being the 26th day of said February term.
It is evident that the affidavit and information were filed in said court on or after February 26, and before March 5, and during the February term of the court, and not in vacation, as claimed by appellant.
It is next insisted that the information is insufficient, for the reason that it is not alleged that the oath administered by Oren J. Chandler, deputy clerk, was one that the clerk was competent to administer. Citing McGregor v. State, 1 Ind. 232.
The information charged that the alleged perjury was committed by appellant while testifying in the Kosciusko Circuit Court, before the Hon. Edgar Haymond, sole judge of said court, as a witness on behalf of the defendant in the case of State v. Wright, in the court below.
This court knows, as a matter of law, that the clerk and deputy clerk of the Kosciusko Circuit Court had authority to administer the oath to appellant, as alleged in the information. When the facts alleged in an indictment or information for perjury show that the oath was one the officer administering it had authority to administer, it is not essential that such authority should be expressly averred. Besides, when an oath is administered by a clerk or his deputy in open court, it is under the superintendence of the court, and is as obligatory as if it had been administered by the judge of the court. Server v. State, 2 Blackf. 35.
The case of McGregor v. State, supra, is not in point. That was a case where the indictment charged that the perjury was committed by the defendant making an affidavit before the clerk of the Madison Circuit Court. At that time the authority of the clerks of the circuit court to administer oaths was limited to certain specified cases, and the court held that the indictment was bad, as it did not show that the oath upon which the affidavit was founded was one which the clerk was competent to administer.
Appellant claims "that his testimony, as set forth in the information upon which the charge of perjury was predicated, was not material to the issue joined in the case of State v. Wright."
The testimony of appellant, set forth in the information, strongly tended to establish an alibi in favor of Wright, who was being tried on a charge of burglary. The materiality of the matter testified to by appellant is fully shown by the facts alleged in the information, and also by a general averment to that effect.
The information was sufficient and met all the requirements of section 1747, R. S. 1881 (section 1816, R. S. 1894), which provides that "In an indictment or information for perjury or subornation of perjury, it shall only be necessary to set forth the substance of the controversy, or the matter in respect to which the crime was committed, and in what court or before whom the oath alleged to be false was taken, and that the court or person before whom it was taken had authority to administer it, with the proper averments to falsify the matter whereof the perjury may be assigned, without setting forth any part of any record or proceeding, or the commission or authority of the court, or other authority before which the perjury was committed."
The second error assigned is that the court erred in refusing to grant appellant a change of venue. This is also specified as one of the causes for a new trial.
Appellant filed his affidavit and motion for a change of venue from the county. The application was supported by the affidavit of his attorney. The prosecuting attorney filed counter affidavits of fifty-one persons, who stated that they were well acquainted with the citizens of the county, and that there was no undue prejudice against appellant, and that, in their opinion, he could have a fair and impartial trial in said county. The court overruled the motion.
It is within the discretion of the court whether a change of venue shall be granted from the county. Section 1771, R. S. 1881 (section 1840, R. S. 1894); Reinhold v. State, 130 Ind. 467, 30 N.E. 306, and cases cited.
There is nothing in the record showing an abuse of this discretion.
The next error assigned calls in question the action of the court in overruling the motion for a new trial.
Among the irregularities assigned as causes for a new trial are the following:
1. Misconduct of counsel for the state in the closing argument to the jury.
2. That the court permitted disorder and demonstration in the court room, favorable to the prosecution, by which the appellant was prevented from having a fair trial.
The details of these alleged irregularities are set forth with great particularity in the causes for a new trial, but appellant has not referred to the page and line of the transcript where a statement of any such irregularity or misconduct is incorporated in a bill of exceptions. The only evidence of such irregularities contained in the record is in the motion for a new trial. Recitals in a motion for a new trial cannot perform the office of a statement required to be incorporated in a bill of exceptions. Elliott App. Proced., sections 294, 295 and 815.
No question is presented by these specifications in the motion for a new trial.
The fourth cause for a new trial was "that the court permitted the jury to take the information with them when they retired to the jury room to deliberate upon their verdict."
This was not error. It is proper for the court to permit the jury to take with them the pleadings in a cause when they retire to the jury room for final consultation. Stout v. State, 90 Ind. 1; Gillett's Crim. Law, section 937.
Besides the court instructed the jury that the information was not evidence against appellant, and could not be considered by them as such.
The fifth cause for a new trial is that the court erred in giving of its own motion instructions one, two, three, four, six, seven and nine. To render this specification of error available as a cause for a new trial, all the instructions named must be incorrect. Ohio, etc., Ry. Co. v. McCartney, 121 Ind. 385, 23 N.E. 258; Lawrence v. Van Buskirk, 140 Ind. 481, 40 N.E. 54; Indiana, etc., Ry. Co. v. Snyder, 140 Ind. 647, 39 N.E. 912.
It is not claimed by appellant that there was any error in giving the first, second and fifth instructions.
The third instruction was concerning the rule of reasonable doubt, and is a copy of one approved by this court in Garfield v. State, 74 Ind. 60. For the reason that at least four of said instructions were correct this cause for a new trial is not available. We have,...
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