Musgrave v. State

• Decision Date: 22 December 1892
• Docket Number: 16,579
• Citation: 32 N.E. 885,133 Ind. 297
• Parties: Musgrave v. The State
• Court: Indiana Supreme Court

32 N.E. 885

133 Ind. 297

Musgrave v. The State

No. 16,579

Supreme Court of Indiana

December 22, 1892

From the Vigo Circuit Court.

Judgment affirmed.

T. F Donham, G. W. Fairs and S. R. Hamill, for appellant.

M. C Hamill, J. Jump, J. E. Lamb and --- Davis, for appellee.

OPINION

Elliott, J.

The charging part of the indictment upon which the appellant was tried and convicted reads as follows:

"That Benjamin R. Musgrave and Charles M. Trout, on the 10th day of August, 1891, at and in the county of Vigo, and State of Indiana, did then and there unlawfully, feloniously and knowingly, unite, combine and conspire, confederate and agree, to and with each other, for the object and purpose, and with the intent to then and there feloniously and knowingly cause it to be generally believed, in said county of Vigo, and by the United States Mutual Accident Association, of the city of New York, a corporation, and by Mrs. Sarah Musgrave, the mother of Benjamin R. Musgrave, that said Benjamin R. Musgrave had thereafter, to wit, on the night of the 23d day of August, 1891, been, by external violence and accidental means, burned to death, and was dead, whereas, in truth and in fact, he had not, as they well knew, been burned to death and was not dead, as thereby feloniously, knowingly, falsely and designedly, and with intent to feloniously cheat, wrong and defraud said United States Mutual Accident Company in money, the property of said association, and of the value of five thousand dollars in money, by inducing false proofs of his death at the time and in the manner aforesaid, and the false pretence and claim that he was dead in such proofs contained, to be procured and made, and with a claim on her part for the said five thousand dollars insurance money, the property of said association, to be presented by said Mrs. Sarah Musgrave, in the belief, on her part, that he was so dead, to said United States Mutual Accident Association, of the city of New York, and thereby, on such false proofs and the false pretence and claim of said Benjamin R. Musgrave's death therein contained, a more particular description of which proofs and claim the grand jurors can not here give and set out, as the form in which such proofs and claim are required to be made are to the grand jurors unknown, to feloniously, willfully, designedly and falsely cause such association to believe him, said Benjamin R. Musgrave, so to have been accidentally burned to death; and in such belief, and in reliance upon the truth of such false proofs, and the false claim and pretense therein contained, and thereby and therewith made, that said Benjamin R. Musgrave had so come to his death, and was dead, to pay to the said Mrs. Sarah Musgrave, and her, by such false proofs, pretense, means and claim to obtain from it, the said United States Mutual Accident Association, of the city of New York, five thousand dollars in money, the property of the said association, and of the value of five thousand dollars in money, upon a policy of insurance, number fifty-five thousand seven hundred and fifty-five, in division "A.A."of said association; theretofore, on the 7th day of August, issued by said association on said Benjamin R. Musgrave, upon application made by him therefor, and signed B. R. Musgrave; and by the terms of which policy that sum of money was made payable by said association to Mrs. Sarah R. Musgrave, as she knew, upon his death having occurred and occurring within ninety days from said August 7, 1891, as a result of external, violent and accidental means; and did then and there, in pursuance of such feloniously and knowingly uniting, combining, confederating and agreeing together for the purpose aforesaid, and to so falsely, feloniously, knowingly, willfully and designedly cause it to be believed for the willful, unlawful, false and felonious purpose of cheating, wronging and defrauding said United States Mutual Accident Association aforesaid, that said Benjamin R. Musgrave had been accidentally burned to death, and a false proof aforesaid to that effect, and the claim aforesaid to be procured, made and presented by said Mrs. Sarah R. Musgrave, and the false pretense of his death aforesaid in such proof and claim to be made to said United States Mutual Accident Association contained, to be relied upon by it, said association, and thereby with the intent, on the part of said Benjamin R. Musgrave and Charles M. Trout, to willfully, designedly and feloniously cheat, wrong and defraud said association, and cause it, said association, to, in such reliance, pay to said Sarah Musgrave, and her to procure from it, said association, said sum of five thousand dollars in money, the property of said association, and of the value of five thousand dollars in money, feloniously, knowingly and designedly procured the skeleton and bones of a dead human being and placed the same in an old house, in said county of Vigo, Indiana, in which house said Benjamin R. Musgrave was, on the said 23d day of August, 1891, temporarily staying; and on the night of said day, in pursuance of such feloniously, knowingly, uniting, combining, conspiring, confederating and agreeing together, as aforesaid, with the false, willful, designed and felonious intent to cheat, wrong and defraud said United States Mutual Accident Association, as aforesaid, in the way and manner aforesaid, caused said house, with the bones and skeleton in it, to be burned down and destroyed by fire, so that part of the bones and skeleton might be found in the ashes of said house, as was soon after on the next day done, and thereby to cause it to be generally believed in the said county of Vigo, Indiana, and by the said United States Mutual Accident Association aforesaid, and said Mrs. Sarah Musgrave, that said Benjamin R. Musgrave had been accidentally burned to death, and was dead, and that such parts of said bones and skeleton which might be, and were, so found, were parts of his, said Benjamin R. Musgrave's bones, while said Benjamin R. Musgrave should, as he did, in pursuance of such feloniously and knowingly entering into conspiracy, combination, confederation and agreement, flee on the night of said 23d day of August, 1891, from the State of Indiana, assume a disguise and a different name, and for a long time keep himself away from the State of Indiana, which he continued to do, and to assume a false name until arrested at St. Paul, in the State of Minnesota, during the first week of November, 1891, and brought back and placed in the jail of Vigo county, Indiana; whereas, in truth and in fact, they, said Benjamin R. Musgrave and Charles M. Trout, well knew that each and all such pretenses, acts and conduct of the said Benjamin R. Musgrave and Charles M. Trout, herein above set out, and so willfully, feloniously, knowingly and designedly done and made, as aforesaid, with the intent to cheat, wrong and defraud said United States Mutual Accident Association out of the sum of five thousand dollars in money, the property of said association, of the value of five thousand dollars, would be and were feloniously, willfully, knowingly and designedly false, and such proofs and claim of his death so to be procured, made and presented, and the pretenses of his death therein contained and thereby to be made by said Mrs. Sarah Musgrave to said United States Mutual Accident Association for the purpose of procuring of and obtaining from it said sum of five thousand dollars in money, on the insurance policy aforesaid, would all, in truth and in fact, be false, but all of which would have been, by Mrs. Sarah Musgrave, to wit, said false proofs of his, said Benjamin R. Musgrave's death, in the way and manner, and at the time aforesaid, and the claim that he was dead, therein contained, and the claim aforesaid for five thousand dollars in money, under the policy aforesaid, said policy would have been presented to said association by her for the purpose aforesaid, but for the fact that it soon became known and understood in said Vigo county, Indiana, and to said United States Mutual Accident Association, and said Sarah Musgrave, that Benjamin R. Musgravehad not been so burned to death, and was not dead; and that all the acts and things done by said Benjamin R. Musgraveand Charles M. Trout were false and felonious, and were done with the intent to falsely, designedly, willfully and purposely defraud and cheat said United States Mutual Accident Association out of said sum of five thousand dollars in money, the property of said association, and of the value of five thousand dollars in money, as aforesaid."

We have copied the indictment for the reason that the questions discussed by counsel in arguing the specification in the assignment of errors, assailing the indictment, can not be properly understood from a mere synopsis of that pleading.An additional reason for copying the unnecessarily prolix and confused pleading is that it gives a general outline of the whole case and opens the way to a consideration of the questions argued by counsel, arising upon other rulings.The indictment is justly subject to verbal criticism, for it is overladen with useless matter and lacks the virtues of perspicuity; but such defects supply no ground for sustaining a motion to quash, and certainly no reason for declaring an indictment bad when assailed for the first time on appeal; for, if the material elements of a crime are charged, surplusage will not vitiate the indictment, nor will lack of clearness render it bad.It is proper to say that the crime the indictment describes is one of a complex and intricate nature, and the work of preparing an indictment one of much difficulty.

The rule prescribed by our statute governing the question of the sufficiency of...