Siebert v. State

• Decision Date: 26 May 1884
• Docket Number: 11,658
• Parties: Siebert v. The State
• Court: Indiana Supreme Court

95 Ind. 471

Siebert v. The State

No. 11,658

Supreme Court of Indiana

May 26, 1884

From the Criminal Court of Allen County.

The judgment is affirmed, with costs.

S. R Alden, for appellant.

F. T Hord, Attorney General, C. M. Dawson, Prosecuting Attorney H. Colerick and W. S. Oppenheim, for the State.

OPINION

Howk, J.

The indictment against the appellant in this case contained two counts. In the first count it was charged "that, on the 13th day of October, A. D. 1883, at the county of Allen and State of Indiana, William Siebert did then and there unlawfully, feloniously, purposely, and with premeditated malice, attempt to commit a violent injury upon the person of John Tonges alias Johann Tonges, he, the said William Siebert, then and there having the present ability to commit a violent injury upon the person of the said John Tonges alias Johann Tonges, and him, the said John Tonges alias Johann Tonges, did then and there unlawfully, feloniously, purposely, and with premeditated malice, in a rude, insolent and angry manner, strike, beat, bruise and wound, with a heavy piece of plank, with the felonious intent him, the said John Tonges alias Johann Tonges, then and there, and thereby, to feloniously, purposely, and with premeditated malice kill and murder."

The second count of the indictment differs from the first count only in this, that it charges the appellant to have committed the assault, and the assault and battery, "with the endgate of a wagon," with the felonious intent, etc.

Appellant's motions to quash each count of the indictment, and for a change of judge, and for a change of venue from the county, were severally overruled by the court, and to each of these rulings he excepted. Upon arraignment, he entered his plea that he was not guilty as charged. The issues joined were tried by a jury, and a verdict was returned, finding him guilty of an assault and battery, with intent to commit murder in the second degree, as charged in the indictment, and that he be imprisoned in the State prison for the period of two years, and fined in the sum of one dollar. Over his motions for a new trial and in arrest of judgment, the court rendered judgment against him in accordance with the verdict.

The first error complained of by the appellant is the overruling of his motion to quash each count of the indictment, for the following specified causes:

"1. That neither count of the indictment states with sufficient certainty the offence for which he is held;

"2. That each count of the indictment charges two separate offences; and,

"3. For duplicity in each count of the indictment."

It is manifest that it was intended to charge the appellant in each count of the indictment with the commission of the felony which is defined, and its punishment prescribed, in section 1909, R. S. 1881. This section provides as follows: "Whoever perpetrates an assault or an assault and battery upon any human being, with intent to commit a felony, shall, upon conviction thereof, be imprisoned in the State prison not more than fourteen years nor less than two years, and be fined not exceeding two thousand dollars." An assault merely is defined in section 1910; an assault and battery is defined in section 1911; and the particular felony, which it is charged the appellant had the intent to commit, namely, murder in the first degree, is defined in section 1904, R. S. 1881.

It will be observed that in each count of the indictment the appellant is charged, in accurate and technical language, with an assault, and, also, with an assault and battery, with the felonious intent, etc. For this reason, it is earnestly insisted by the appellant's counsel, that each count of the indictment is bad for duplicity, and the motion to quash the same ought to have been sustained. A similar objection was urged to the fourth count of the indictment in Dickinson v. State, 70 Ind. 247. The court there said: "The first objection urged by the appellant's counsel to the sufficiency of the fourth count of the indictment, in argument, is its duplicity, in this, that it charged the appellant, in technical terms, with an assault and also an assault and battery, with the felonious intent, etc. We are of the opinion, however, that this objection afforded no sufficient ground for quashing the fourth count of the indictment; for the defect complained of is one which could not and did not 'tend to the prejudice of the substantial rights of the defendant upon the merits.' 2 R. S. 1876, p. 387. The charge of an assault is included in the charge of an assault and battery; and if the appellant had been charged only with an assault and battery, with the felonious intent, he might have been convicted of an assault merely, with or without the intent, according to the evidence. The State v. Prather, 54 Ind. 63; Jones v. The State, 60 Ind. 241."

In section 1756, R. S. 1881, it is provided, in substance, that no indictment shall be deemed invalid, nor shall the same be set aside or quashed, for any defect or imperfection therein, "which does not tend to the prejudice of the substantial rights of the defendant upon the merits." Where the defendant is charged, in a single count, with the commission of two offences growing out of one and the same transaction, the one of which in legal effect is included in the other, both defined in the same section of the statute, and both subject to precisely the same punishment, it can not be correctly said, we think, that such duplicity in the count, if such it be, would or could tend to the prejudice of the substantial rights of the defendant upon the merits. We recognize the doctrine that in criminal pleading there can be no joinder of separate and distinct offences in one and the same count. Knopf v. State, 84 Ind. 316; State v. Weil, 89 Ind. 286. But the doctrine in question is not applicable, as it seems to us, to such cases as Dickinson v. State, supra, or the case in hand.

Our conclusion is, therefore, that no such error was committed by the trial court, in overruling the appellant's motion to quash either count of the indictment, as would justify or authorize the reversal of the judgment.

The next errors complained of in argument are the overruling of appellant's motions for a change of judge, and for a change of venue from the county. Neither of these supposed errors is so saved in or presented by the record of this cause that it can be considered and passed upon by this court. The record shows that the motion for the change of judge was made upon affidavit, and that, when it was overruled, twenty-five days were given the appellant "in which to settle and file his bill of exceptions herein." It is also shown by the record that appellant's motion for a change of venue from the county was based upon affidavits filed, and that the prosecuting attorney filed the counter affidavits of certain persons; and that, when the motion was overruled, thirty days were given the appellant "in which to file his bill of exceptions herein." The transcript filed in this court does not contain either of these bills of exceptions, and it fails to show that either of such bills was ever signed or filed in the lower court. Such affidavits and counter affidavits can only be made parts of the record on appeal by bill of exceptions or by an order of the court. Horton v. Wilson, 25 Ind. 316; Smith v. Smith, 77 Ind. 80. The clerk has copied into the transcript the appellant's individual affidavits, but the other affidavits and counter affidavits are not to be found therein. The overruling of these motions were proper causes for a new trial, and were improperly assigned as independent errors. Berlin v. Oglesbee, 65 Ind. 308, and cases cited. But as they were assigned as causes for a new trial in appellant's motion therefor, we have considered them in the order adopted by counsel. Kennedy v. State, 37 Ind. 355.

Appellant's counsel next complains, in argument, that an attorney of the trial court was hired by one of the witnesses for the State, who was the uncle of the prosecuting witness, to prosecute the appellant in this cause, and was permitted by the court, over the appellant's objections, to examine witnesses and make the opening and closing arguments in said cause, with the consent of the court, the prosecuting attorney assisting in the prosecution of the cause, and being present during the entire time, and in no wise incapacitated to prosecute said cause. This is the substance of what is shown by the bill of exceptions in regard to the matter complained of. The cause assigned by the appellant for a new trial, which we suppose was intended to present the matter complained of for the consideration of the trial court and of this court, was substantially as follows: "Error of law occurring at the trial of said cause, in this, that the court, over the objection and exception of this defendant, permitted ** an attorney practicing at the bar of said court to assist in the prosecution of said cause, and make the opening and closing arguments for the State, without having been appointed or authorized by the court, or requested by the State or its prosecuting attorney so to do."

If it were conceded that the matters stated in this...