Robinson v. State, 28915

• Decision Date: 15 June 1953
• Docket Number: No. 28915,28915
• Citation: 112 N.E.2d 861,232 Ind. 396
• Parties: , Blue Sky L. Rep. P 70,218 ROBINSON v. STATE.
• Court: Indiana Supreme Court

Page 861

112 N.E.2d 861

232 Ind. 396, Blue Sky L. Rep. P 70,218

ROBINSON v.STATE.

No. 28915.

Supreme Court of Indiana.

June 15, 1953.

Harry E. Vernon, Goshen, for appellant.

J. Emmett McManamon, former Atty. Gen., Edwin K. Steers, Atty. Gen., John Ready O'Connor, William T. McClain, Thomas J. Faulconer, III., Deputy Attys.Gen., for appellee.

DRAPER, Judge.

The appellant was convicted on each of the two counts of an amended affidavit filed against him in the Noble Circuit Court.He filed a timely motion to quash each count of the affidavit, assigning the second and fourth statutory grounds.Burns'1942 Repl., § 9-1129.¹The motion was overruled, and the correctness of that ruling is the only question presented.

The first count, based on Burns'1948 Repl., § 25-849(e) alleges, substantially in the language of the statute, that the appellant sold, caused to be sold and caused to be offered for sale, certain securities required to be registered under the law, to wit: stock in a certain corporation, with knowledge that the corporation was insolvent at the time.It does not allege the name of the person or persons to whom the securities were sold, caused to be sold or caused to be offered for sale, nor does it allege that such are unknown.

The names of third persons who are only incidentally or collaterally connected with the offense charged against an accused need not be stated in an affidavit or indictment.State v. Hopper, 1892, 133 Ind. 460, 32 N.E. 878;Joyce on Indictments, 2nd Ed., § 438.But as a general rule the name of one injured in his person or property, by the act of the accused, or the name of one whose identity is essential to a proper description of the offense charged should be alleged if known, and if unknown that fact should be alleged.Ibid., § 432;42 C.J.S., Indictments and Informations, § 142.

The defendant has a right to require that a charge against him be made with such certainty as will enable him to distinguish it from other violations of the same statute, and with such particularity as will enable him to anticipate the proof which may be adduced against him and prepare to meet it.Mayhew v. State, 1920, 189 Ind. 545, 128 N.E. 599.The averments must be so clear and distinct that there may be no difficulty in determining what evidence is admissible thereunder.Mayhew v. State, supra;Funk v. State, 1898, 149 Ind. 338, 49 N.E. 266;Padgett v. State, 1906, 167 Ind. 179, 78 N.E. 663;Large v. State, 1928, 200 Ind. 430, 164 N.E. 263.The charge must be preferred with such reasonable certainty as will enable the court and jury to distinctly understand what is to be tried and determined, and fully inform the defendant of the particular charge which he is to meet.Large v. State, supra.It must be particular and specific enough so that the grand jury may not base an indictment on evidence of one crime and the petit jury base a verdict on evidence of another.State of Indiana v. Brown, 1935, 208 Ind. 562, 196 N.E. 696.

In holding, in McLaughlin v. State, 1873, 45 Ind. 338, at page 344, that the names of those to whom intoxicating liquor was sold must be set out in the indictment, this court said:

'The principal objects in requiring a reasonable degree of particularity in charging an offence are, first, in order to identify the charge, lest the grand jury should find a bill for one offence and the defendant be put upon his trial, in chief, for another, without any authority.Second.That the defendant's conviction or acquittal may enure to his subsequent protection, should he be again questioned on the same grounds; the offence, therefore, should be defined by such circumstances as will, in such case, enable him to plead a previous conviction or acquittal of the same offence.Third.To warrant the court in granting or refusing any particular right or indulgence, which the defendant claims as incident to the nature of the case.Fourth.To enable the defendant to prepare for his defence, in particular cases, and to plead in all, or, if he prefer it, to submit to the court, by demurrer or motion to quash, whether the facts alleged, supposing them to be true, so support the conclusion in law, as to render it necessary for him to make any answer to the charge.Fifth.Finally and chiefly, to enable the court, looking at the record after conviction, to decide whether the facts charged are sufficient to support a conviction of the particular crime, and to warrant their judgment; and also, in some instances, to guide them in the infliction of a proportionate measure of punishment upon the offender.'

These rules have been applied in many of our cases other than those above cited.Some of them are the following: State v. Stucky, 1829, 2 Blackf. 289;Butler v. State, 1840, 5 Blackf. 280;State v. Irvin, 1840, 5 Blackf. 343;State v. Noland, 1867, 29 Ind. 212;Walters v. State, 1910, 174 Ind. 545, 92 N.E. 537;Compton v. State, 1930, 201 Ind. 535, 170 N.E. 325;Glaser v. State, 1932, 204 Ind. 59, 183 N.E. 33.We are required to hold that count one of the affidavit was insufficient to withstand a motion to quash.

The second count reads as follows:

'Wayne L. Thompson, first being duly sworn, upon his oath, says that on or about the 22nd day of March, 1950, at the county of Noble, State of Indiana, Theodore Robinson, Ira W. Johnston and Porter B. Williamson, then and there being officers and directors of the Local Grocery Corporation, did then and there unlawfully, fraudulently, knowingly and falsely, in writing, to-wit: a written prospectus and financial statement of the Local Grocery Corporation, pretend to Wayne L. Thompson, with the intent then and there by such false pretenses to cheat and defraud the said Wayne L. Thompson for the purpose of obtaining money from Wayne L. Thompson, that the Local Grocery Corporation was the owner of real estate of the value of seventy thousand, six hundred and fifteen ($70,615.00) dollars, and further that the said Local Grocery Corporation was engaged in the wholesale selling of goods and the operation of foods super markets, primarily in the state of Indiana, and at said time was operating one super market; whereas in truth and in fact, the said Local Grocery Corporation at that time was the owner of no real estate whatever in the State of Indiana or elsewhere, and in truth and in fact, the Local Grocery Corporation at that time did not own, and did not...