Pontarelli v. State

Decision Date11 June 1931
Docket Number25,844
Citation176 N.E. 696,203 Ind. 146
PartiesPontarelli v. State of Indiana
CourtIndiana Supreme Court

Rehearing denied January 15, 1932.

1. FALSE CLAIMS, PRESENTING---Claim against City---Indictment---Averments as to How City Would be Indebted to Defendant Unnecessary.---An indictment for presenting a false claim against a city (2945 Burns 1926) need not show in what manner and under what conditions the city would be liable to the defendant. p. 157.

2. FALSE CLAIMS, PRESENTING---Claim against City---Sufficiency of Indictment---Payment by City Unnecessary.---In a prosecution for presenting a false claim to a city, the indictment need not specifically allege that all or any part of the claim is to be paid by the city if facts are stated showing that, as a condition precedent to obtaining payment of said claim, it must be presented to the proper city officials and that they must take some action thereon before payment of the amount purporting to be due under said claim can be obtained. p. 157.

3. GRAND JURY---Challenge of Individual Grand Jurors---By Plea of Abatement.---There is no statutory (or common-law) right to challenge individual grand jurors "for favor" by plea in abatement after the return of an indictment. p. 158.

4. GRAND JURY---Qualifications of Grand Jurors---Owners of Realty Subject to Assessment for Construction of Sewer---Indictment of Contractor.---Owners of realty subject to assessment for the construction of a sewer were not disqualified to serve on a grand jury which indicted the contractor for presenting a false claim to the city for work in connection with the construction thereof. p. 158.

5. CRIMINAL LAW---Change of Venue from County---When Discretionary with Trial Court---Review on Appeal.---Under the express provisions of 2239 Burns 1926, in all cases not punishable by death, the granting of a motion for a change of venue on account of bias and prejudice existing in the county is within the discretion of the trial court, and, unless it affirmatively appears that the court abused its discretion its ruling on an application therefor will not be disturbed on appeal. p. 159.

6. FALSE CLAIM, PRESENTING---Indictment Supported by Sufficient Evidence---Evidence Showed Charge for "Quicksand"---Indictment charged "Concrete mat."---An indictment charging that a sewer contractor presented a false claim for constructing a "concrete mat" for a sewer built by him was supported by sufficient evidence, although the charge against the city was itemized in said claim as "quicksand," where the contract for the construction of the sewer had been modified to call for a "concrete mat" to support the sewer for a certain distance where quicksand had been encountered p. 166.

7. MUNICIPAL CORPORATIONS---Modification of Contract for Construction of Sewer---Construction of Agreement of Modification---Precluded when Agreement Clear and Unambiguous.---An agreement between a city and a contractor for the construction of a sewer modifying the original contract by providing for additional compensation for the additional expense of constructing the sewer through quicksand clearly provided that the extra compensation was to be computed at a specified rate per lineal foot "where the so-called concrete mat construction was used," and being plain and unambiguous, there was no room for construction thereof. p. 166.

8. CONTRACTS---Construction---Precluded when Plain and Unambiguous.---When a contract is plain and unambiguous, it is not subject to any rule of construction. p. 166.

9. FALSE CLAIM, PRESENTATION---Elements of Offense---Presentation to Officers Named in Statute Necessary.---The statute penalizing the presentation of false claims (2945 Burns 1926) contemplates the presentation of a claim or other evidence of indebtedness to the officers named in the statute. p. 169.

10. FALSE CLAIMS, PRESENTATION---Claim Need not be Formal or Verified.---In order to come within the statute penalizing the presentation of false claims, the claim need not be formal or verified. p. 169.

11. CRIMINAL LAW---Construction of Statute Defining Crime---Rule of Strict Construction Applies---Offense Must be Within Letter of Statute.---The rule of strict construction applies to criminal statutes, and acts of a defendant alleged to constitute a criminal offense must be within the letter as well as within the spirit of the law. p. 171.

12. FALSE CLAIM, PRESENTING---Preparation of Itemized Statement of Claim for Use in Conference with City's Attorneys in Negotiating a Settlement---Held not Presentation to Board of Public Works.---A city contractor's preparation of an itemized statement of the various elements of a claim against the city for work done in the construction of a sewer, including an item for which he claimed extra compensation because of additional expense of constructing the sewer through quicksand, which was used in a conference with the city's attorneys in negotiating a settlement of the claim for extra compensation, was not the "making or presenting" of a claim to the board of public works of said city. p. 171.

13. FALSE CLAIM, PRESENTING---To City Board of Public Works---Evidence Insufficient to Show Presentation of Claim to such Board.---In a prosecution of a sewer contractor for presenting to the board of public works of Evansville a false claim for additional compensation for extra work and expense in constructing a sewer through quicksand, held, that the evidence failed to show that the defendant presented a claim to such board for any amount as charged in the indictment. p. 171.

From Vanderburgh Circuit Court; Ollie C. Reeves, Special Judge.

George Pontarelli was convicted of making and presenting a false and fraudulent claim to the Board of Public Works of the city of Evansville, and he appealed.

Reversed.

Pickens, Davidson, Gause, Gilliom & Pickens, Eli F. Seebirt, Phillip C. Gould, Frank H. Hatfield and William C. Wellborn, for appellant.

James M. Ogden, Attorney-General, and Earl B. Stroup, Deputy Attorney-General, for the State.

Roll J. Martin, C. J., concurring in part.

OPINION

Roll, J.

Appellant was charged by indictment with having made out and presented for allowance to the board of public works of the city of Evansville, Indiana, a certain false and fraudulent claim in violation of § 2945 Burns 1926, Acts 1905 p. 584, § 685. A motion by appellant to quash the indictment was denied and a proper exception was reserved. Appellant filed his plea in abatement, to which the court sustained a demurrer, with exceptions to appellant. A motion and affidavit for a change of venue from Vanderburgh County was filed by appellant, and the State filed counter-affidavits. The court denied the change of venue, to which ruling of the court, the appellant excepted. There was a plea of not guilty, a trial by jury, and a verdict returned finding appellant guilty as charged in the indictment. A motion for a new trial was overruled, with exceptions. Thereupon, the court rendered judgment that appellant pay a fine to the State of Indiana in the sum of $ 10, and that he be imprisoned in the Indiana State Prison for a period of not less than two years, nor more than 14 years, and that he pay the costs and charges therein.

Appellant prosecutes his appeal to this court and predicates error upon (1) the overruling of his motion to quash the indictment; (2) in sustaining the demurrer of the State of Indiana to appellant's plea in abatement; (3) in overruling appellant's motion for a change of venue from Vanderburgh County, and (4) in overruling appellant's motion for a new trial.

The indictment is in one count and the charging part reads as follows: "The grand jurors for the County of Vanderburgh and State of Indiana, upon their oaths, present and charge that George Pontarelli, on or about the 14th day of October, A. D. 1925, at said county and state, did then and there make and enter into with the City of Evansville, an incorporated city of the second class in said county and state, said city acting by and through its Board of Public Works, a certain contract in writing, by the terms of which said contract the said George Pontarelli covenanted and agreed to furnish all labor, materials, tools, machinery and equipment, and to construct and fully complete a certain sewer known and designated therein as the Howard Roosa sewer, in said City of Evansville, according to improvement resolution No. 1-1925 of said Board of Public Works adopted on the 12th day of August, 1925, and according to the plans, profile and specifications for said work which had theretofore been prepared and adopted by said Board of Public Works of said city to govern the construction of said sewer; that by the terms of said written contract the said City of Evansville, by and through its said Board of Public Works, contracted and agreed to compensate and pay the said George Pontarelli for the construction of said sewer;

"That thereafter, and before this presentment, the exact date of which is to these grand jurors unknown, the said George Pontarelli began the construction of said Howard Roosa sewer in said City of Evansville, Indiana, under and by virtue of the terms and provisions of said written contract hereinbefore referred to; that during the month of June, A. D. 1927, the exact day of said month being to these grand jurors unknown, the said George Pontarelli quit the construction of the said sewer under the terms, conditions and provisions of said written contract, and the said George Pontarelli then and there refused to complete the said sewer for the compensation fixed and agreed upon in said above-described written contract, and the said George Pontarelli reported to the said Board of Public Works of said City of Evansville, aforesaid,...

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