Smith v. State

• Decision Date: 12 July 1960
• Docket Number: No. 29838,29838
• Citation: 241 Ind. 1,168 N.E.2d 199
• Parties: Virgil W. SMITH, alias V. Wilson, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 199

168 N.E.2d 199

241 Ind. 1

Virgil W. SMITH, alias V. Wilson, Appellant, v. STATE of Indiana, Appellee.

No. 29838.

Supreme Court of Indiana.

July 12, 1960.

Frank I. Hamilton, Greensburg, for appellant.

Edwin K. Steers, Atty. Gen., Richard M. Givan, Asst. Atty. Gen., Richard C. Johnson, Deputy Atty. Gen., for appellee.

ACHOR, Judge.

This is an appeal from a judgment of the Criminal Court of Marion County, Division No. 2, rendered upon a verdict of a jury, wherein the appellant was charged by indictment of a bribery of a State Officer in two counts under Acts 1959, ch. 236, § 1, p. 565 [being § 10-601, Burns' 1956 Repl.]. The jury found the appellant guilty on both counts and he was sentenced to the Indiana State Prison for an indeterminate term of not less than two years, nor more than fourteen and fined the sum of $10,000 on each count. Appellant urges,

First: That the trial court erred in overruling his motion to quash. In support of this motion, appellant argues that the indictment is duplicitous because each of the counts charged more than one offense committed at different times.

Appellant concedes that under established precedent in this state, since the forbidden acts of (1) offering a bribe and (2) accepting a bribe are disjunctively joined in the same section of the statute, and since the same penalty is provided for one or both of such offenses, they could be joined in a single count, provided such acts occurred at the same time. The same is true of the forbidden acts charged in Count Two. With regard to alleged dates of said offenses, we note that Count One of the indictment charged that appellant solicited a bribe on September 6, 1956, and that he accepted the said sum on January 15, 1957 Count Two charges the appellant with accepting a promise to pay a bribe on September 6, 1956, and accepting payment thereof on January 15, 1957. Therefore, appellant argues that since on the face of the indictment the act charged occurred at different times, both counts are bad on the grounds of duplicity or misjoinder.

In support of this position, appellant relies upon the case of Glaser v. State, 1932, 204 Ind. 59, 62, 183 N.E. 33, 34. In that case it is stated as follows:

'* * * The law applicable to criminal pleading in this jurisdiction forbids the joining of 'separate and distinct offenses, created by separate and distinct sections of the statute, and separate statutes,' or offenses committed at different times, in the same count. (Cases cited.) * * * But where, as here, the offense charged consists of one or more of the forbidden acts committed at the same time and included in a single section of the statute, and the punishment is the same for one or all of the offenses named, a single count charging more than one conjunctively will not be bad for duplicity. (Cases cited.)

'The precise question, in principle, now under consideration was before this court in Selby v. State (1904), 161 Ind. 667, 672, 69 N.E. 463, 465, and Bruner v. State (1929), 201 Ind. 33, 164 N.E. 272, and in both cases it was held that a charge of forgery and knowingly uttering a forged instrument may be pleaded in a single count when tied together conjunctively, when both offenses are charged 'as constituting a single transaction, and for which but a single penalty can be exacted.' The pleading at bar is sufficient to withstand a motion to quash.'

The question presented, then, is whether the term 'at the same time,' as used in the above reported case, must be construed to mean that the forbidden acts must occur simultaneously, or whether it is sufficient that the acts were a part of a single transaction, where, as in this case, the solicitation (or promise to accept) of the bribe occurred on one date and the receipt or acceptance thereof occurred at a later date.

An analysis of the Glaser case, supra, relied on by appellant, and the later case of strickland v. State, 1940, 217 Ind. 588, 591, 29 N.E.2d 950, 952, which cites the Glaser case on this point, demonstrates that the forbidden acts need not occur simultaneously. In both cases this court affirmed the propriety of joining charges of forgery and of uttering a forged check in a single count. The latter case makes no reference to a limitation that the acts occurred 'at the same time.' In that case the check in controversy was forged in one county and uttered in another. Therefore, of necessity, the forging of the check and the uttering of the check did not occur 'at the same time.' However, in that case the court reaffirmed the following proposition of law as applicable 'It is true that the pleading of separate and distinct offenses, created by separate and distinct acts of the statute, or by separate statute, is forbidden, but where, as here, a criminal statute enumerates several acts disjunctively, and provides the same punishment for doing any one or all of said acts, then two or more of said acts may be charged conjunctively in a single count without objection for duplicity.'

We therefore construe the law to be that if the forbidden acts may otherwise be joined in a single count it is not necessary that they occur simultaneously, but is sufficient that they occur in the ordinary course of the transaction, to which the several forbidden acts enumerated are related to each other.

We conclude, therefore that the separate acts of soliciting payment of a bribe, the acceptance of the promise of a bribe and the subsequent payment of such bribe, as contemplated by the accused, were transactions consummated within the time contemplated by the character of the transaction involved and that it was therefore proper to join the charge of such acts in single counts. For this reason the indictment was valid as against the motion to quash.

Second: Appellant urges that the court erred in refusing the defendant's application for a change of venue from the county, filed November 5, 1958. The appellant had filed an affidavit of local prejudice for a change of venue from the county, supported by some 13 affidavits. The State thereafter filed some 23 counter-affidavits. The trial court denied the change of venue on November 7, 1958.

Acts of 1905, ch. 169, § 207, p. 584 [being § 9-1305, Burns' 1956 Repl.], states:

'When affidavits for a change of venue are founded upon excitement or prejudice in the county against the defendant, the court, in all cases not punishable by death, may, in its discretion, and in all cases punishable by death, shall grant a change of venue to the most convenient county. * * *' (Our emphasis.)

Thus, the denial of a change of venue from the county is a determination of an issue of fact, and is conclusive upon review, except for an abuse of discretion by the court. State ex rel. Allison v. Crim. Ct. of Mar. Co. etc., 1958, 238 Ind. 190, 149 N.E.2d 114; Liese v. State, 1954, 233 Ind. 250, 118 N.E.2d 731; Jackson v. State, 1953, 232 Ind. 453, 112 N.E.2d 433; Butler v. State, 1951, 229 Ind. 241, 97 N.E.2d 492.

The affidavits filed by appellant in support of the change are rebutted in this case by the counter-affidavits opposing the change. Under the circumstances here presented we cannot say as a matter of law that the court abused its discretion by its denial of the motion for change of venue.

Third: Appellant urges as error the court's overruling of appellant's motion for a continuance. However, the motion for a continuance was not contained in the transcript. Because there is a record of the court's denial thereof predicated upon the insufficiency of the motion and its supporting affidavits, appellant argues that this record should suffice. Since the motion upon which the action of the court is based is not set forth in the transcript, the question of whether there was an abuse of discretion in the court's ruling cannot be reviewed. Rule 2-6. Beecher v. City of Terre Haute, et al., 1956, 235 Ind. 180, 132 N.E.2d 141; Flanagan, Wiltrout & Hamilton's Indiana Trial and Appellate Practice, § 2332, ch. 46, p. 116.

Fourth: Appellant argues that the verdict of the jury is not sustained by sufficient evidence. The evidence in support of the conviction is as follows. Witness Mogilner testified that he and appellant entered into 'more or less a partnership agreement' regarding the purchase of machinery by the State Highway Department. Pursuant to this agreement, Mogilner testified he would connect himself with various machinery manufacturers and Smith (as Chairman of the State Highway Department) would be in a position to let him know what the state needed in the way of purchases; that Smith could assist Mogilner in getting his particular bids for the firms he represented and that Smith would see that the bids would be accepted according to the stated specifications. Mogilner further testified that under this agreement appellant would receive one-third of Mogilner's commissions for all sales negotiated by him to the State Highway Department.

Specifically, as Mogilner testified, his arrangement existed with respect to 3 Speed Swing Front-End Loaders to be purchased by the State Highway Department from Pettibone-Mulliken. Mogilner also testified that he paid appellant Smith, alias V. Wilson, $7,793.33, which represented his one-third commission from the Pettibone-Mulliken Company products. A cancelled check and voucher are in evidence, supporting the fact of such payment. The evidence was ample to sustain the conviction.

Fifth: Appellant argues that the verdict is contrary to law for the reason that the evidence presented materially varies from the charges contained in the indictment. He asserts that this variance exists both as to the date and nature of the bribe allegedly solicited in Count One, and the promise to accept the bribe, as alleged in Count Two.

First, we will consider the variance as to the date of the alleged acts. The indictment in Count One charges that appellant solicited payment 'on or about the 6th day of September, A.D. 1956...