McCutcheon v. State

• Decision Date: 13 January 1911
• Docket Number: No. 21,666.,21,666.
• Citation: 93 N.E. 545,176 Ind. 13
• Parties: McCUTCHEON et al. v. STATE.
• Court: Indiana Supreme Court

176 Ind. 13

93 N.E. 545

McCUTCHEON et al.

v.STATE.¹

No. 21,666.

Supreme Court of Indiana.

Jan. 13, 1911.

Appeal from Circuit Court, Clark County; H. C. Montgomery, Judge.

George L. McCutcheon and another were convicted of crime, and they appeal. Affirmed.

Alexander Dowling, for appellants. Jas. Bingham, Edw. M. White, Alex. G. Cavins, and Wm. H. Thompson, for the State.

MYERS, C. J.

Appellants were indicted under section 2508, Burns' Ann. St. 1908 (Acts 1907, p. 100), charging that they did on or about March 24, 1908, “unlawfully offer for sale to Charles W. Marshall a certain horse for one hundred and sixty-five and ninety-hundredths ($165.90) dollars in money, which said horse was then and there diseased in this, to wit, that said horse was then and there broken-winded, said George L. McCutcheonand Harry W. Martin then and there well knowing said horse to be broken-winded and diseased as aforesaid, and did then and there conceal the existence of such disease from said Charles W. Marshall, to whom they were then and there offering said diseased horse for sale, and did then and there and thereby effect the sale of said diseased horse to said Charles W. Marshall, he, the said Charles W. Marshall, being then and there ignorant of the existence of said disease; and said George L. McCutcheon and Harry W. Martin did then and there by such sale unlawfully obtain one hundred and sixty-five dollars and ninety cents in money, of the value of one hundred and sixty-five and ninety-hundredths dollars of the personal property of the said Charles W. Marshall, contrary,” etc.

Over motion to quash, and plea of not guilty, they were found guilty on trial by a jury and fined, and over motions for a new trial judgment was rendered against each. Separate errors are assigned on the motions to quash the indictment, and on overruling the separate motions for a new trial.

The sufficiency of the indictment is challenged on the ground that a fraudulent sale, where it fails to allege that any trick, artifice, drug, or device of any character was employed to conceal the existence of the alleged disease or defect, fails to charge any public offense, for the reason that it does not show any affirmative act by which appellants concealed the existence of the alleged disease or defect. It is held in Boyer v. State (1908) 169 Ind. 691, 83 N. E. 350, that the statute defines two offenses, viz., offer to sell a diseased animal, knowing it to be so, without disclosing that fact to one who does not know it, and to prohibit the employment of any trick, drug, or artifice by which sale...