Robinson v. State

• Decision Date: 22 June 1916
• Docket Number: No. 22915.,22915.
• Citation: Robinson v. State, 185 Ind. 119, 113 N.E. 306 (Ind. 1916)
• Parties: ROBINSON v. STATE.
• Court: Indiana Supreme Court

185 Ind. 119

113 N.E. 306

ROBINSON

v.STATE.

No. 22915.

Supreme Court of Indiana.

June 22, 1916.

Appeal from Circuit Court, Blackford County; Wm. H. Eichhorn, Judge.

Bessie Robinson was convicted of offering a bribe to a prosecuting attorney, and appeals. Affirmed.Pursley & Peterson, of Montpelier, and George W. Cromer and Harry Long, both of Muncie, for appellant. Evan B. Stotsenburg, Atty. Gen., Lee F. Sprague, of Hartford City, and Horace M. Kean, Leslie R. Naftzer, Omer S. Jackson, and Wilbur T. Gruber, Asst. Attys. Gen., for the State.

MORRIS, C. J.

Appellant was convicted of offering a bribe to a prosecuting attorney under section 2378, Burns 1914, which provides that:

“Whoever corruptly *** offers to any *** prosecuting attorney *** any money *** to influence his action *** in any matter pending *** shall, on conviction, be imprisoned,” etc.

The affidavit, on which the prosecution rested, charges:

“That, heretofore to wit, on the 24th day of July, 1913, at the county and state aforesaid, one Lee F. Sprague was then and there the duly elected and qualified prosecuting attorney in and for the twenty-eighth judicial circuit, of the state of Indiana, and as such officer was charged with the duty of prosecuting an indictment against Bessie Robinson for the crime of keeping, running, and operating a place where intoxicating liquors were sold in violation of the laws of the state of Indiana, and being unlawfully found in possession of such intoxicating liquors to be sold for such purpose (being commonly known as the blind-tiger charge) for which crime Bessie Robinson had then and there been duly indicted by the grand jury of said county, as she, the said Bessie Robinson, then and there well knew, and with such knowledge the said Bessie Robinson did then and there unlawfully, feloniously, and corruptly offer to the said Lee F. Sprague $200, lawful money of the United States of America, with the corrupt purpose then and there to influence the official action of the said Lee F. Sprague as such prosecuting attorney, and to induce the said Lee F. Sprague, prosecuting attorney, to dismiss a prosecution against the said Bessie Robinson upon said indictment returned by the grand jury of the county and state aforesaid, in the Blackford circuit court of Indiana, charging her, the said Bessie Robinson, with keeping, running, and operating a place where liquors were unlawfully sold, in violation of the laws of the state of Indiana, and being unlawfully found in possession of liquors for the purpose of selling same in violation of the laws of the state of Indiana, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state of Indiana.”

Appellant filed a motion to quash on the following ground only:

“The facts stated in said affidavit do not constitute a public offense.” Section 2065, cl. 2, Burns 1914.

The overruling of this motion is assigned as error.

[1] It is contended by appellant that the affidavit is fatally defective because it fails to allege that appellant knew Sprague was prosecuting attorney when she offered the bribe, and Banks v. State. 157 Ind. 197, 60 N. E. 1087,State v. Howard, 66 Minn. 309, 68 N. W. 1096, 34 L. R. A. 178, 61 Am. St. Rep. 403, and other authorities are cited in support of the proposition. The Attorney General, among other things, claims that appellant waived her right to a consideration of the question, because of the provisions of section 2 of an act approved March 4, 1911 (Acts 1911, p. 415; section 344, Burns 1914) which, in civil causes, requires a party demurring to specify the defect in the challenged pleading. Hedekin Land & Improvement Co. v. Campbell (No. 22957) this term, 112 N. E. 97. We do not assent to such theory. Section 2065, Burns 1914, provides for motions to quash indictments or affidavits, and is section 194 of the Public Offense Act of 1905 (Acts 1905, p. 626). The statute is a substantial reenactment of section 184 of the Criminal Procedure Act of 1881. Acts 1881, p. 114 (R. S 1881, § 1759). The second clause of the section performs, in criminal pleading, substantially the same function as did the general demurrer to a complaint in a civil action before said amendment of 1911, while the fourth clause of said section provides a method of challenging the indictment somewhat analogous to the provision of our Civil Code which recognizes motions to make pleadings more definite and certain. Section 385, Burns 1914. We are of the opinion that said act of 1911 was not designed to control motions to quash, and that the latter are sufficient if in the language of the statute. Scott v. State, 176 Ind. 382, 96 N. E. 125;Davis v. State (1879) 69 Ind. 130.

It is also suggested by the Attorney General that the phrase, “as she *** well knew,” relates as well to the averment of the election and qualification of the prosecutor as to that of the return of the indictment. See Wilkinson v. State, 10 Ind. 372;Steeple v. Downing, 60 Ind. 478; 31 Cyc. 87. In view of the conclusion we have reached, this claim is not determined, and, for the purposes of this decision, the averment of knowledge is treated as referring only to the return of the indictment.

[2] Where there is an entire absence of averment of some material ingredient of the offense, the indictment will not repel a motion to quash based on the second clause of section 2065, Burns, supra; and, if there be an attempt to aver such ingredient, but in uncertain language, the indictment must succumb to a motion to quash based on the fourth clause of said section. Section 343a, Burns 1914. The indictment here was not challenged by motion to quash for the uncertainty contemplated by said fourth subdivision, and consequently the consideration of any question that might have been presented by resort to such clause has been waived. Trout v. State, 107 Ind. 578, 8 N. E. 618;Stewart v. State, 113 Ind. 505, 509, 16 N. E. 186;Woodsmall v. State (1913) 179 Ind. 697, 102 N. E. 130;Robinson v. State, 177 Ind. 263, 97 N. E. 929.

In Banks v. State, 157 Ind. 190, 60 N. E. 1087, the defendant was charged with bribing a “designated” election officer under section 2379, Burns 1908. It was said in the opinion that an allegation of knowledge of official character of the person to whom the bribe was offered is necessary, and State v. Howard (offering bribe to juror) 66 Minn. 309, 68 N. W. 1096, 34 L. R. A. 178, 61 Am. St. Rep. 403, and Pettibone v. United States, 148 U. S. 197, 13 Sup. Ct. 542, 37 L. Ed. 419, were cited. In the latter case it was said:

“In cases of that sort it is the official character that creates the offense and the scienter is necessary. *** This is so whenever knowledge is an essential ingredient of the offense, and not implied in the statement of the act itself. Wharton, Crim. Pl. & Pr. § 164.” (Italics ours.)

In said section 164, Wharton says:

“Where the statement of the act itself necessarily includes knowledge of the illegality of the act, no averment of knowledge is necessary.”

This qualification of the general rule is generally recognized. State v. McDonald, 106 Ind. 233, 238, 6 N. E. 607;Commonwealth v. Bailey, 82 S. W. 299, 26 Ky. Law Rep. 583;State v. Dankwardt, 107 Iowa, 704, 77 N. W. 495.

In Banks v. State, supra, the averments did not involve a consideration of said qualification of the general rule. The acts alleged did not imply knowledge of official character. Indeed it was held that there was no sufficient allegation of legal appointment to office of the person to whom the alleged bribe was offered.

In State v. McDonald, supra, the indictment did not directly or expressly allege that the defendant had knowledge of the official character of the person to whom the offer was made, but this court held that knowledge was implied. To the same effect see Com. v. Bailey, and State v. Dankwardt, supra.

[3] Here, for testing the motion to quash, appellant admits the truth of the following allegations of the affidavit: Lee Sprague was the prosecuting attorney of Blackford county, and charged with the prosecution of an indictment against appellant, which she knew had been returned, and with such knowledge she corruptly offered said Sprague the sum of $200 to influence his official action and induce him to dismiss said indictment. The count averred necessarily implies knowledge of Sprague's official character. A person of common understanding could not mistake the purport, for no hypothesis of ignorance of official character is reconcilable with the act averred, and courts should not pretend ignorance of what all mankind knows. Assuming that it was necessary to aver knowledge of official character, the affidavit was sufficient.

Appellant contends that the fact in controversy must have been averred directly and positively. Axtell v. State, 173 Ind. 711, 91 N. E. 354, pursued such line of reasoning, but was overruled in Agar v. State, 176 Ind. 234, 94 N. E. 819. Since then, and before the filing of this affidavit, the act approved March 15, 1913, took effect. Acts 1913, p. 850 (section 343, Burns 1914.) The effect of this act is the requirement of a more...