Miller v. State

• Decision Date: 16 March 1937
• Docket Number: 26714.
• Citation: 6 N.E.2d 948,211 Ind. 317
• Parties: MILLER v. STATE.
• Court: Indiana Supreme Court

6 N.E.2d 948

211 Ind. 317

MILLER v. STATE.

No. 26714.

Supreme Court of Indiana

March 16, 1937

Appeal from St. Joseph Circuit Court; Dan Pyle, Judge.

George Sands, of South Bend, for appellant.

Omer S. Jackson, Atty. Gen., and Henry R. Wilson, Jr., Asst. Atty Gen., for the State.

FANSLER, Judge.

Appellant was indicted with two others, tried, and convicted of the offense of conspiracy to commit grand larceny.

He assigns as error the overruling of his motions to quash the indictment, in arrest of judgment, and for a new trial.

The indictment charges that appellant, George Martin, and John Doe, whose true Christian name was unknown, and divers other persons, whose true names were unknown to the grand jurors conspired to commit a felony, 'to-wit, to unlawfully and feloniously take, steal and carry away, divers large sums of money, to-wit, more than twenty-five ($25.00) Dollars the exact amount being to the Grand Jurors unknown, said divers large sums of money being the property of divers persons unknown to the Grand Jurors unknown with the intent then and there on the part of the said defendants and said divers other unknown persons first above mentioned, to convert said large sums of money to their own use, said large sums of money being good and lawful money of the United States and of a value of more than twenty-five ($25.00) Dollars, the exact value of which being to the Grand Jurors unknown, contrary to the form of the Statute.'

Appellant says that the indictment does not state a public offense, since it fails to name the person or persons conspired against, and to designate the amount of money which appellant conspired with others to steal; that there is no showing on the face of the indictment that the felony which was intended was of such nature that the conspirators could not have known who they intended to rob, or the amount of money which they intended to take, and that therefore the indictment must be held to be an attempt to charge a conspiracy to commit a larceny against particular persons and for an anticipated amount; that, since the names of the persons alleged to have been conspired against are not set forth, and the amount of money not alleged, the failure to recite such details rendered the indictment fatally defective. As supporting this theory, appellant cites Kreig v. State (1934) 206 Ind. 464, 190 N.E. 181 183, and McKee v. State (1887) 111 Ind. 378, 12 N.E 510; but they furnish no support for the contention. In the Kreig Case, the McKee Case is 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.' In this case the felony which was the object of the conspiracy is not charged to have been completed. It is expressly alleged in the indictment that the persons upon whom the larceny was to operate, and the amount of money which was intended to be taken, were unknown. The sufficiency of the facts before the grand jury to justify the charges in the indictment cannot be questioned, and the recitals concerning knowledge, or want of knowledge, of the names of parties, or other matters,...