Smith v. State, 29643
| Decision Date | 16 December 1960 |
| Docket Number | No. 29643,29643 |
| Parties | Virgil M. SMITH, Robert A. Peak, Appellants, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Frank I. Hamilton, Greensburg, for appellants.
Edwin K. Steers, Atty. Gen., Carl M. Franceschini, La Porte, for appellee.
Appellants were charged by indictment with conspiracy to commit a felony, to-wit: the embezzlement of public funds. They were convicted after a trial by jury. Appellants Smith and Peak were fined in the amounts of $5,000 and $2,500 respectively, and they were each sentenced for a term of 2-14 years. They appeal from the judgment.
Appellants first contend the court erred in overruling their motion to quash the indictment alleging the facts stated in the indictment did not constitute a public offense.
The indictment in question was as follows:
'The Grand Jury for the County of Marion in the State of Indiana, upon their oath do present that Virgil W. Smith, Nile Teverbaugh, Robert A. Peak and Harry Doggett on or about the 22nd day of September A.D. 1954, at and in the County of Marion and in the State of Indiana, did then and there unlawfully, knowingly and feloniously unite, combine, conspire, confederate and agree to and with each other for the object and purpose and with the unlawful and felonious intent to commit a felony, to-wit: embezzlement of public funds, in that the said Virgil W. Smith who was then and there Chairman of the State Highway Department of Indiana, and, as such Chairman was charged and entrusted by law with the safekeeping, transfer and disbursement of money or funds belonging to or under the control of the State of Indiana or any state officer and as such Chairman of the State Highway Department of Indiana, the said Virgil W. Smith would then and there unlawfully, feloniously and wilfully embezzle, convert and appropriate to the use of Robert A. Peak and Lawrence A. Peak a portion of such money and funds, to-wit: twenty-five thousand eight hundred ($25,800.00) dollars in lawful money belonging to the State of Indiana, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'
Appellant state that appellant Smith is alleged in the indictment to be charged and entrusted by law as Chairman of the State Highway Department with the safekeeping transfer and disbursement of money in the state highway fund. Appellants contend this power and authority was reposed in the three-man State Highway Department, and that although appellant Smith was one of them, as chairman he did not have that authority.
Burns' § 36-109 (1949 Replacement), 1 provides as follows:
The membership of the highway commission is constituted as provided by Burns' § 36-173b (1960 Cum.Supp.), 2:
Appellants contend that Burns' § 36-109, supra, stating that the '* * * commission shall have access to and the power to draw upon and expend all money in the state highway fund * * *' means that the chairman thereof did not have the authority set forth in the indictment; on the other hand, appellee (the State) contends the chairman had control of the funds of the department under that portion of Burns' § 36-109, supra, stating '* * * the chairman shall approve all bids, sign all vouchers, issue all orders for supplies and materials, sign all contracts and agreements in the name of the state of Indiana, and shall subscribe to all other matters which may arise in the carrying out of the intent and purpose of this act.'
We do not believe the case of State v. Roberts, 1948, 226 Ind. 106, 76 N.E.2d 832, 78 N.E.2d 440, relied on by appellants is in point as to the authority of the chairman of the commission. That case was an action for writ of prohibition in this Court to stop ditch proceedings by the lower court against the highway commission. It does not involve the question of the power and authority of the chairman of the commission as distinguished from the commission itself and is therefore not helpful to appellants.
Under Burns' § 36-173b, supra, there can be no question that the chairman of the highway department is also one of the three members of the department. And under Burns' § 36-109, supra, the chairman has authority to '* * * approve all bids, sign all vouchers, * * * [and] subscribe to all other matters which may arise in the carrying out of the intent and purpose of this act.' The department under Burns' § 36-109 is given access to and the power to draw upon and expend all money in the state highway fund to carry out the purposes of the act.
We are unable to agree with appellants that appellant Smith as chairman of the department did not have sufficient authority over the safekeeping, transfer and disbursement of money in the state highway fund for the indictment to prevail over appellants' motion to quash. See also Kops v. State, 1942, 220 Ind. 373, 42 N.E.2d 58.
Appellants further assert their motion to quash the indictment was erroneously overruled as the indictment in part states that appellants did '* * * on or about * * * unlawfully, * * * conspire, confederate and agree * * * to commit a felony, to-wit: embezzlement of public funds, * * * that * * * Virgil W. Smith would then and there unlawfully, feloniously and wilfully embezzle, * * * a portion of said money and funds, to-wit: twenty-five thousand eight hundred ($25,800.00) dollars * * *.' (Italics supplied.)
Appellants contend the word 'would' in describing the felony appellants allegedly conspired to commit, is improper as it relates to the future and that appellants should have been charged with conspiring to commit a felony, to-wit: that Virgil Smith did (instead of would) embezzle public funds.
To state the contention made by appellants is equivalent to admitting its absurdity, for it is obvious one could not be charged with having conspired to do something he had done prior to the conspiracy. The indictment charged conspiracy to commit a felony which of necessity relates to a conspiracy to commit a subsequent felony. The gravamen of the crime of conspiracy has taken place when the unlawful agreement and conspiracy has been entered into regardless of whether the felony is actually committed or not. See Taylor, Bryant v. State, 1956, 235 Ind. 126, 131 N.E.2d 297; Lynn v. State, 1934, 207 Ind. 393, 193 N.E. 380. Furthermore, an affidavit similar to the indictment in the case before us was held sufficient as against a motion to quash in Kops v. State, supra.
Appellants have further contended the indictment should have been quashed as it is inconsistent with the facts, in that Virgil W. Smith is charged with having been '* * * then and there Chairman of the State Highway Department of Indiana * * *' when in fact they claim he did not become chairman until a later time. While this argument might properly have been urged as to the sufficiency of the evidence to sustain the verdict or upon the question of a variance between the indictment and the proof, it could not be a proper basis for quashing the indictment, for it is well settled that the facts alleged in the indictment are deemed to be true for the purpose of the ruling on the motion to quash. See Stephenson v. State, 1933, 205 Ind. 141, 179 N.E. 633, 186 N.E. 293.
We are unable to conclude any error was committed in overruling the motion to quash on the ground that the facts alleged did not constitute a public offense or that the offense was not charged with sufficient certainty.
Appellants further contend the court erred in overruling their motion for a mistrial and withdrawal of submission from the jury grounded on alleged remarks made by the prosecuting attorney outside the courtroom to the newspapers as to appellants' connection with other cases pending in court. However, the motion does not set forth the alleged statements made by the prosecutor either in substance or in haec verba. Where error is predicated on the overruling of a motion for mistrial on the ground of misconduct of counsel, it is not sufficient to allege the misconduct in general language but the specific acts of misconduct must be set out. 4 Works' Ind.Prac., Lowe's Rev., § 61.54, p. 51.
The motion does make reference to an article in the Indianapolis Star of October 26, 1957, but a search of the record fails to reveal the existence of any such exhibit in the transcript or the gist of the same in appellants' briefs, and there is therefore nothing before us for consideration. See Rule 2-17 of the Supreme Court; Board of Med. Regist. and Exam., etc. v. Bowman, 1958, 238 Ind. 532, 150 N.E.2d 883; Gilkison et al. v. Darlington, 1952, 123 Ind.App. 28, 106 N.E.2d 473.
Appellants' next contention of error is that the court erred in overruling their motion for a mistrial based on the fact a newspaperman had talked to a juror at an intermission during the trial. The court held a hearing on the matter from which it appeared that one of the reporters was...
To continue reading
Request your trial
-
State v. Lehman
...of an alternate juror after jury deliberations have begun, see State v. Miller, 76 N.J. 392, 388 A.2d 218 (1978); Smith v. State, 241 Ind. 311, 170 N.E.2d 794 (Ind.1960); Commonwealth v. Kalinowski, --- Mass. ----, 429 N.E.2d 368 (Ct.App.1981).The New York Court of Appeals has struck down a......
-
People v. Ford
...782, 552 P.2d 742, cert. denied, 429 U.S. 1077, 97 S.Ct. 820, 50 L.Ed.2d 796; State v. Miller, 76 N.J. 392, 388 A.2d 218; Smith v. State, 241 Ind. 311, 170 N.E.2d 794; Commonwealth v. Kalinowski, 12 Mass.App. 827, 429 N.E.2d 368, review denied, 385 Mass. 1102, 440 N.E.2d 1174; U.S. v. Phill......
-
Shack v. State
...trial court to overrule appellant's motion for a mistrial. See Oldham v. State (1967), 249 Ind. 301, 231 N.E.2d 791; Smith v. State (1960), 241 Ind. 311, 170 N.E.2d 794. Appellant puts emphasis on the fact that the jurors involved did not testify. However, he was given an opportunity to pre......
-
Johnson v. State
...of the persons accused done in pursuance of an apparent criminal or unlawful purpose in common between them.' Citing Smith v. State (1960), 241 Ind. 311, 170 N.E.2d 794; Steffler v. State (1952), 230 Ind. 557, 104 N.E.2d In Robertson v. State (1952), 231 Ind. 368, 108 N.E.2d 711 the Court s......