Page v. State
| Decision Date | 26 April 1923 |
| Docket Number | No. 24105.,24105. |
| Citation | 193 Ind. 442,139 N.E. 143 |
| Parties | PAGE v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, St. Joseph County; Walter A. Funk, Judge.
Henry E. Page was convicted of concealing stolen goods, under Burns' Ann. St. 1914, § 2274, and he appeals. Affirmed.
Thomas W. Slick, P. J. Houlihan, and Joseph V. Wypiszynski, all of South Bend, for appellant.
U. S. Lesh, Atty. Gen., and Mrs. Edward Franklin White, Deputy Atty. Gen., for the State.
Upon an affidavit filed in the court below, appellant was tried before a jury and convicted of an offense defined by section 2274, Burns' 1914 (Acts 1905, p. 584, § 382). He was sentenced to imprisonment from 1 to 14 years. From that judgment he has appealed, and in this court has assigned as errors the overruling of his motion to quash the affidavit, the overruling of his motion for a venire facias de novo, the overruling of his motion in arrest of judgment, and the overruling of his motion for a new trial.
The affidavit, in so far as it is material to the decision of the questions here presented, is as follows:
“That on or about the 11th day of May, 1921, A. D., at the town of White Pigeon, and in the county of St. Joseph, state of Michigan, one Frank Prough did then and there unlawfully and feloniously take, steal, and carry away, of the personal goods and chattels of the said John Fogarty, the following personal property, to wit: [Describing it]-which said personal property and goods and chattels of said John Fogarty were then and there of the value of one hundred thirty-four ($134.00) dollars, and the said Henry E. Page thereafter, to wit, on or about the 12th day of May, 1921, A. D., at the county of St. Joseph, state of Indiana, did then and there unlawfully and feloniously buy, conceal, and aid in the concealment of the said property, and the said Henry E. Page knowing the same to have been feloniously stolen by the said Frank Prough as aforesaid, contrary,” etc.
Appellant asserted in his motion to quash that the affidavit did not state facts sufficient to constitute a public offense, nor did it state the offense with sufficient certainty. He assigns four specifications, supporting his motion in arrest. However, it is fair to say he relies only on one-that the facts stated in the affidavit do not constitute a public offense. Hence the motion to quash and the motion in arrest may be considered together.
Appellant earnestly insists that the affidavit is fatally defective, in that it contains no direct allegation that the state of Michigan is a state or territory of the United States, nor that the stolen goods were “brought into the state of Indiana.” For these alleged defects alone we are requested to hold that the affidavit was essentially defective.
[1] Our attention is first directed to the claim that the affidavit fails to state that the state of Michigan is one of the states of the United States. To this insistence the doctrine of judicial notice may be well applied. It is that courts will take judicial notice of matters of common and general knowledge, and “not pretend to be more ignorant than the rest of mankind.” State v. Louisville, etc., R. Co., 177 Ind. 553, 562, 96 N. E. 340, Ann. Cas. 1914D, 1284. What fact is better generally known by the people of this state than that the state of Michigan is one of the states of the United States. Courts will take judicial notice of the geography of the country (Mossman v. Forrest, 27 Ind. 233), and of the history of their state, its boundary lines, its topography and condition (Williams v. State, 64 Ind. 553, 31 Am. Rep. 135;State ex rel. v. Gramelspacher, 126 Ind. 398, 26 N. E. 81); also the distance between well-known cities in the United States, or in the same state, or in different states. (Gunning v. People, 82 Am. St. Rep. 433, 447, note; Pettit v. State, 135 Ind. 393, 412, 34 N. E. 1118). The trial court judicially knew, and so does this court judicially know, that the state of Michigan is beyond the boundary jurisdictionally of the state of Indiana.
[2] To hold that the affidavit in the case at bar did not contain a sufficient allegation of foreign jurisdiction would require that we give the words therein employed a meaning not reasonably attributable to them. Moreover, the alleged omission could not in the least have harmed appellant's rights upon the merits of the case. Furthermore, we have a statute (section 2063, Burns' 1914) which provides that no affidavit shall be quashed for any “defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” Therefore we conclude that the pleader was not required to add the recital, “one of the states of the United States,” to the allegation, “at the town of White Pigeon, and in the county of St. Joseph, state of Michigan”; nor was the state bound to offer evidence tending to prove this additional recital.
[3] Looking to the second alleged defect, it is true the affidavit does not in so many words charge that the goods alleged to have been stolen in the state of Michigan “were ever brought into the state of Indiana.” The statute (section 2274, supra) under which the affidavit in this case was filed requires that the stolen property be brought into this state in order to constitute the offense therein defined. That fact should appear by a direct statement; but, as it does not so appear, we may look to all the facts properly alleged for an inference amounting to such an allegation. The affidavit, in part, states that appellant “at the county of St. Joseph, state of Indiana, did then and there unlawfully and feloniously buy, conceal, and aid in the concealment” of the property alleged to have been feloniously stolen in the state of Michigan. According to this affidavit, if the facts charged should warrant, appellant might have been convicted of any one of the three offenses therein enumerated. In Stribbling v. State, 56 Ind. 79, it was said:
“The sufficiency or insufficiency of an indictment may be tested by the answer to the following question: Can the facts properly alleged in the indictment, be true, and the defendant innocent of the offense intended to be charged against him?”
Applying this question to the affidavit at bar, it must be held bad in so far as it attempts to charge appellant with buying or aiding in concealing; for, from aught appearing in the affidavit, appellant may have bought the property, or he may have aided in the concealment thereof, as alleged in the affidavit, without ever having removed it from the state of Michigan.
[4] However, as to the charge “conceal,” we have a different question. The...
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