Smith v. The State
| Decision Date | 14 February 1896 |
| Docket Number | 17,729 |
| Citation | 42 N.E. 1019,145 Ind. 176 |
| Parties | Smith v. The State |
| Court | Indiana Supreme Court |
Rehearing Denied May 27, 1896.
From the Huntington Circuit Court.
Affirmed.
Kenner & Lesh, and Cobb & Hart, for appellant.
W. A Ketcham, Attorney-General, E. S. Kelsey, W. F. Dinins, and Branyan & Branyan, for State.
On affidavit and information, the appellant was convicted of perjury, and sentenced to imprisonment in the State's prison.
It is first urged that the court erred in overruling the motion to quash the first count of the affidavit and information, under which the conviction was had. The reason given for this contention is that there is repugnancy between the affidavit and information, as to the date of the offense charged; and also that there is repugnancy in the allegations of the information itself.
The affidavit charges that the perjury was committed, at the trial of a certain cause in the Huntington Circuit Court "on the 26th day of September, 1893." This date appears twice in the affidavit with the first count of the information, and twice also in the affidavit with the second count; and no other date is named in either affidavit.
In the first clause of the information it is stated that the action, in the trial of which it is alleged that the appellant committed the act of perjury, was pending in said court "on the 26th day of September, 1889." In a subsequent clause of the information, and that in which the particulars as to the alleged false testimony of appellant are set out, the date of the trial, being also the date of the alleged perjury, is stated as follows: "And said issue being duly joined in said cause between the said claimant and the said estate, and the said petit jury of twelve men being duly impaneled and sworn to try said cause, and said cause was so tried in the Huntington Circuit Court on the 26th day of September, 1893; and said issues were tried by said court and jury, in due form of law, and he, the said John W. Smith, was called as a witness by the claimant and plaintiff in said cause, and was duly sworn in due form of law as such witness." The testimony given by the witness, and alleged to have been false, is then set out in detail in the information.
The date of the trial and of the alleged perjury, September 26, 1893, being the last date named in the information, agrees with the dates stated in the affidavit. The first date named in the information, that on which it is alleged the action was pending, September 26, 1889, we are satisfied, is a mere clerical error. Yet, even if the action were in fact pending on September 26, 1889, that circumstance would not be inconsistent with the fact of the trial of the cause, and the commission of the act of perjury on September 26, 1893. Besides, the first date, in the information, together with all the words and phrases relating to it, may be omitted as surplusage, and we shall have left, as said in State v. White, 129 Ind. 153, 28 N.E. 425, "sufficient to indicate the crime and person charged substantially in the language of the statute." Section 2093, R. S. 1894 (section 2006, R. S. 1881). See also Drake v. State, Post, 210.
As to repugnancy claimed to exist among the allegations of the information itself, we think, after a careful reading of the information, that it is clear to a common intent, and that appellant could have suffered no harm from any irregularities of language contained in it. The crime of perjury is substantially well charged; and the statute forbids the quashing of an indictment or information, among other defects, "for any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged." Section 1825, R. S. 1894 (section 1756, R. S. 1881); McCool v. State, 23 Ind. 127; Wall v. State, 23 Ind. 150; State v. Patterson, 116 Ind. 45, 10 N.E. 289.
What we have said as to the motion to quash the information, is equally applicable to the motion in arrest of judgment. Both motions, as we think, were properly overruled.
Several errors are assigned and discussed as to the appointment of judges to try the cause. The Hon. C. W. Watkins, the regular judge, having been of counsel in the case, called the Hon. J. T. Cox, judge of the Fifty-first Judicial Circuit, to try said cause, and all other causes that might be brought before him while "acting as special judge of this court." After Judge Cox assumed jurisdiction of the case, the appellant filed a motion and affidavit for a change of judge on account of bias and prejudice. On the granting of this motion, the appellant requested Judge Cox to call a special judge to hear the cause, but Judge Cox refused to call another judge, for the reason that, being himself an appointee, he had no authority to appoint another judge, that such authority could be exercised only by the regular judge. This refusal of Judge Cox to appoint another special judge, and the action of Judge Watkins, the regular judge, in taking the bench and making such appointment of a second special judge, was, we think, in strict compliance with the statute. Only a regular judge may appoint a special judge in his own place. Section 1447, R. S. 1894; 2 Gav. & H. 10; 2 Davis, R. S. 1876, 11; Acts 1855, 62; Burrell v. State, 129 Ind. 290, 28 N.E. 699; Glenn v. State, ex rel., 46 Ind. 368; Cargar v. Fee, 119 Ind. 536, 21 N.E. 1080, and 140 Ind. 572, 39 N.E. 93.
But, even if our decisions had not so ruled, still, in this case, as Judge Cox refused to appoint another special judge, and the jurisdiction of the cause remaining in the Huntington Circuit Court, the regular judge of that court would have the right to appoint some one to try the cause. This would be required by public policy. Singleton v. Pidgeon, 21 Ind. 118.
Complaint is also made that even if Judge Watkins had power to appoint the second special judge, he ought to have called another regular judge, and not have appointed an attorney to try the cause. The statute, section 1839, R. S. 1894 (section 1770, R. S. 1881), leaves the appointment in such case to the discretion of the judge, providing only that "if it shall be difficult, in the opinion of the court, for any cause, to procure the attendance of such judge," then "any competent and disinterested attorney of this State, in good standing," shall be appointed to try the cause. Judge Watkins, in making the appointment complained of, said: "In the opinion of the court such regular judge cannot be readily obtained." And counsel do not question but that the attorney appointed was competent, disinterested, and in good standing. This would seem to show that the appointment was fully authorized. Under section 1447, R. S. 1894, already cited, the appointment complained of might also have been made.
Complaint is made that the court overruled the motion for a change of venue from the county. It is provided in section 1840, R. S 1894 (section 1771, R. S. 1881), that "When the affidavits are founded upon excitement or prejudice in the county against the defendant, the court, in all cases...
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