Pontarelli v. State

• Decision Date: 11 June 1931
• Docket Number: No. 25844.,25844.
• Citation: Pontarelli v. State , 203 Ind. 146, 176 N.E. 696 (Ind. 1931)
• Parties: PONTARELLI v. STATE.
• Court: Indiana Supreme Court

203 Ind. 146

176 N.E. 696

PONTARELLI

v.STATE.

No. 25844.

Supreme Court of Indiana.

June 11, 1931.

Appeal from Vanderburg Circuit Court; Ollie C. Reeves, Special Judge.

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

Reversed, with instructions.

Pickens, Davidson, Gause, Gilliom & Pickens, of Indianapolis, Eli F. Seebirt, of South Bend, and Phillip C. Gould, Frank H. Hatfield, and William C. Welborn, all of Evansville, for appellant.

James M. Ogden and Earl B. Stroup, both of Indianapolis, for the State.

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, Ind., a certain false and fraudulent claim in violation of section 2945, Burns' 1926 Statutes, Acts 1905, p. 584, c. 169. 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 Vanderburg 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 fourteen years, and that he pay the cost and charges herein.

Appellant prosecutes his appeal to this court, and predicates error upon the overruling of his motion (1) 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 Vanderburg 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, that quicksand and soil in the nature of quicksand had been encountered by him, the said George Pontarelli, in the construction of said sewer, and that he, the said George Pontarelli, would not continue with the construction of said sewer under and by virtue of the terms and provisions of said written contract above referred to, and that he would not continue with the construction of and complete said sewer unless the City of Evansville, by and through its Board of Public Works, modified said above-described written contract for the construction of said sewer, and in said modification made provision for additional compensation to him, the said George Pontarelli, for extra construction, labor and materials which were necessary for the construction of said sewer in, along and through said quicksand and soil in the nature of quicksand, which said extra construction, labor and materials he, the said George Pontarelli, then and there represented were necessary to construct said sewer in, upon, along and through said quicksand and soil in the nature of quicksand which the said George Pontarelli then and there represented existed along the route of said Howard Roosa sewer as described in said plans, profile and specifications for said work, and which additional compensation the said George Pontarelli then and there represented was not provided for in said written contract for the construction of said sewer, and was made necessary by reason of certain obstructions encountered in the construction of said sewer, to wit, said quicksand and soil in the nature of quicksand, which said obstruction could not reasonably have been foreseen before the construction of said sewer was begun; that at the time of the said representations by the said George Pontarelli to said Board of Public Works, as aforesaid, there remained to be constructed approximately twenty-nine hundred (2,900) feet of said sewer upon and along Crown avenue, in said City of Evansville, and the said George Pontarelli represented that said quicksand and soil in the nature of quicksand existed upon and along said Crown avenue in said City of Evansville;

“That thereafter, to wit, on or about the 1st day of July, A. D. 1927, the said George Pontarelli and the said City of Evansville aforesaid, acting by and through its said Board of Public Works, to which the said George Pontarelli assented, modified the original written contract for the construction of said Howard Roosa sewer which had theretofore been entered into by and between the said George Pontarelli and the said City of Evansville on or about the 14th day of October, A. D. 1925, as hereinbefore alleged, and the said City of Evansville did then and there covenant and agree with the said George Pontarelli that for five hundred (500) lineal feet of said sewer theretofore constructed by said contractor, wherein quicksand conditions had been encountered and additional construction had been used by said George Pontarelli, and for twenty-five hundred fifty (2,550) lineal feet of the remaining twenty-nine hundred (2,900) feet of said sewer not yet constructed, making in all three thousand fifty (3,050) lineal feet, said City of Evansville would pay unto the said contractor, George Pontarelli, in addition to the contract price set out and agreed upon in said original written contract for the construction of said sewer the following sums of money, to wit:

“Seventy-one dollars eighteen cents ($71.18) per lineal foot for each lineal foot of said three thousand fifty (3,050) lineal feet wherein the said George Pontarelli constructed said sewer upon a concrete mat twelve (12) feet in width, one (1) foot in thickness, and backed by concrete three (3) feet in thickness at each outer edge, said concrete mat to be constructed by the use of steel sheet piling and constructed in accordance with the plans and specifications theretofore adopted by the said Board of Public Works, which said plans and specifications were furnished to the said George Pontarelli; and

“Seventy-four dollars ninety-eight cents ($74.98) per lineal foot for each lineal foot of said three thousand fifty (3,050) lineal feet wherein the said George Pontarelli constructed a wood piling foundation to support said sewer, said wood piling foundation to be constructed by said George Pontarelli by the use of steel sheet piling and in accordance with the plans and specifications adopted by said Board of Public Works, which said plans and specifications were furnished to said George Pontarelli;

“That thereafter, to wit, on or about the 1st day of July, A. D. 1927, the said contractor, George Pontarelli, resumed the construction of said Howard Roosa sewer under the provisions of said original written contract for the construction of said sewer, as modified by the passage and adoption of said resolution making provision for additional compensation to be paid said contractor, George Pontarelli, by said City for said extra construction, labor and materials, to be used and employed by said George Pontarelli in constructing said sewer upon, along and through said three thousand fifty (3,050) lineal feet of quicksand and soil in the nature of quicksand, and the said George Pontarelli in all things recognized the validity of said resolution as modifying said original written contract for the construction of said Howard Roosa sewer;

“That thereafter, to-wit, on or about the 23rd day of April, A. D. 1928, at said Vanderburgh County, State of Indiana, the said George Pontarelli did then and there unlawfully, feloniously, knowingly and designedly, with intent to cheat and defraud the said City of Evansville, aforesaid, and...