Sherrick v. State
| Decision Date | 16 November 1906 |
| Docket Number | 20,823 |
| Citation | 79 N.E. 193,167 Ind. 345 |
| Parties | Sherrick v. The State |
| Court | Indiana Supreme Court |
From Criminal Court of Marion County (36,188); James E McCullough, Special Judge.
Prosecution by the State of Indiana against David E. Sherrick. From a judgment of conviction, defendant appeals.
Reversed.
Addison C. Harris, Dan. W. Simms and William N. Harding, for appellant.
Charles W. Miller, Attorney-General, C. C. Hadley, H. M. Dowling and W. C. Geake, for the State.
John W Kern, Terhune & Abney and Miller, Shirley & Miller amici curiae.
The indictment against appellant contained eleven counts. The fifth was for larceny, and all the others for embezzlement. He was acquitted on the fifth, and convicted on each of the other counts.
It is charged in the first count that the defendant, as Auditor of State, being then and there charged and intrusted with the collection, receipt and safe-keeping of moneys, funds, etc., for the State, did receive for the State, moneys, funds, securities, bonds and choses in action amounting to the sum of $ 1,000,000, and on June 30, 1905, feloniously converted to his own use $ 120,000 thereof, and which belonged to the State, the same being a part of the money so received by him as such Auditor. The third count, after charging the official trust and the receiving, as in the first count, alleges that the defendant converted to his own use certain bills, bank checks and drafts of the value of $ 120,000, the property of the State, a more particular description of which was unknown to the grand jury.
To each of these counts appellant addressed a motion to require the prosecuting attorney to furnish him with a bill of particulars showing the nature of the facts which the State will seek to introduce in support of said counts, and from what source, and from whom, and on what account, the money with which he was charged with embezzling came into his possession, so that the same may be identified. The motion was overruled, and this presents the first question for our consideration. We have in this State what purports to be a complete code of criminal procedure, and in it there is no recognition of a motion for a bill of particulars. § 1808 Burns 1905, Acts 1905, pp. 584, 621, § 167. Under our code an indictment must contain a statement of the facts constituting the offense in plain and concise language; that is, the facts must be stated in such clear, full and certain manner as reasonably to apprise the defendant of what he is required to meet, and any failure to do this may be reached by a motion to quash. § 1835 Burns 1905, Acts 1905, pp. 584, 626, § 194. Certainty in the essential facts relied upon by the prosecution being thus secured, our courts, so far as we are advised, have not found it necessary to resort to bills of particulars to preserve the rights of either the State or the defendant, and we can conceive of no case under our criminal code where such a motion would be proper. Such a practice was wholly unknown to the ancient common law, but as time went on, under a keener sense of fairness to the defendant, it was developed in actions of debt and assumpsit. 3 Ency. Pl. and Pr., 518.
Later the practice was extended to certain criminal cases, wherein it was deemed sufficient to charge the offense in general terms, as being a common barritor, a common scold, and the like. 1 Hawkins, Pleas of the Crown (6th ed.), chap. 81, § 13. At a more recent date the practice was, and has continued to be, employed by judges in this country, in jurisdictions where more general and uncertain pleading is permissible, as well as in England, in cases where they have found it necessary to prevent surprise and injustice to the defendant, to require the State to amplify and designate certain subsidiary and evidentiary facts relied upon by the prosecution, and which are not disclosed or indicated by the general language in which the offense is charged. Among the first of such cases was Commonwealth v. Snelling (1834), 15 Pick. 321, 331, which was a prosecution for libel, and in which Shaw, J., says: "The general rule to be extracted from these analogous cases, is, that where, in the course of a suit, from any cause, a party is placed in such a situation that justice cannot be done in the trial, without the aid of the information to be obtained by means of a specification or bill of particulars, the court, in virtue of the general authority to regulate the conduct of trials, has power to direct such information to be seasonably furnished." Such a bill was also required under an indictment charging the defendant with being a common seller of intoxicating liquors on a particular day. Commonwealth v. Giles (1854), 67 Mass. 466.
In Florida it was allowed in a prosecution for embezzlement on an indictment under the following statute: "It shall be sufficient to allege generally in the indictment the embezzlement of money to a certain amount, without specifying any particulars of such embezzlement."
In brief, it may be said that under the adjudications of a number of other states, the right to call for a bill of particulars arises, not from a statute, but from the inherent power of the court, to be exercised in any case, when from the general character of the charge, or peculiar nature of the facts admissible in evidence, it becomes manifest to the trial judge that justice cannot be fully administered, or may become greatly imperiled, without the advanced information obtainable through a bill. Wharton, Crim. Pl. and Pr. (9th ed.), § 702; 1 Bishop, Crim. Proc. (3d ed.), § 643; People v. Jaehne (1886), 4 N. Y. Cr. 161; State v. Wooley (1887), 59 Vt. 357, 10 A. 84; People v. McKinney (1862), 10 Mich. 54; Commonwealth v. Snelling, supra; Westbrooks v. State (1899), 76 Miss. 710, 25 So. 491. From the very nature of the right, the power to order or to refuse to order a bill of particulars, it is held, rests within the sound judicial discretion of the trial court, subject to review on appeal only for its abuse. State v. Davis (1880), 52 Vt. 376; Thalheim v. State (1896), 38 Fla. 169, 20 So. 938; People v. McKinney, supra; Commonwealth v. Shoener (1904), 25 Pa.Super. 526, 536; Commonwealth v. Ryan (1857), 75 Mass. 137; 1 Bishop, Crim. Proc. (3d ed.), § 643; Wharton, Crim. Pl. and Pr. (9th ed.), § 705.
It may be said, however, that under the certainty required in criminal pleading in this State, whenever a trial judge finds it necessary to the administration of justice to grant a bill of particulars, he has found an ample reason for quashing the indictment for uncertainty.
For a further reason, there was no error in denying the appellant's motion for specifications or particulars. He is charged with the conversion of moneys, bills, bank checks, and drafts belonging to the State, and which he had in his possession and under his control as Auditor of State. So far as our information extends a bill of particulars was never awarded a public officer as a means of obtaining information as to how, and from whom, and on what account, the property alleged to have been converted came into his hands. Such requirement of the State would amount to a practical denial of the right to prosecute. How can the State, without opportunity, know from whom, and on what particular account, the money was received? A public officer engaged in collecting and disbursing revenues of the State, and whose dealings with the public embrace a large number of persons and a multiplicity of items, and who has the sole supervision of his accounts, occupies a position very different from an agent, clerk, or private person. The work of the latter is usually performed under the supervision and control of the principal, who has, or at any time may acquire, accurate knowledge of names, amounts, and accounts, and thus be in a position to respond to particulars. But the Auditor of State, being his own master, and pursuing his own methods, is the only person who knows, and can know, the details of his office, and is therefore in no position to ask for that information which he has, or has the opportunity to have. People v. McKinney, supra; State v. Munch (1875), 22 Minn. 67, 73.
Furthermore, it is charged in the indictment that appellant as Auditor of State was charged and intrusted with the collection, safe-keeping and disbursement of money, securities, bonds, and choses in action belonging to the State, and as such auditor he did receive, for the purposes aforesaid, money, securities, bonds and choses in action, amounting to $ 1,000,000, and converted a part to his own use. The State was required to prove the receiving, the trust and the conversion of at least a part. It was not required to prove the source or persons from whence the money came, or the fund to which it belonged, and from which it was converted. A conversion from one fund constitutes the same crime, and carries the same punishment, as a conversion from any other fund, or from all the funds combined. Hence the information sought could have been of no value to the defendant, because the State was not required to make such proof. Hollingsworth v. State (1887), 111 Ind. 289, 12 N.E. 490; 15 Cyc. Law and Proc., 516, and the large number of cases therein collected; 3 Ency. Pl. and Pr., 529. The court did not err in overruling the appellant's motion for a bill of particulars.
Appellant has assigned error on the overruling of his motion to quash the several counts of the indictment. In his argument however, both in his brief and orally before the court, he has pointed out no specific objection to either of the counts, and after a careful examination we have failed to find any sufficient reason for holding any of them bad. We therefore pass to what appellant terms...
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