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...
