State v. Green

• Court: Indiana Supreme Court
• Writing for the Court: HUGHES, Judge.
• Citation: State v. Green, 207 Ind. 583, 194 N.E. 182 (Ind. 1935)
• Decision Date: 22 February 1935
• Docket Number: 26223
• Parties: STATE v. GREEN

194 N.E. 182

207 Ind. 583

STATE v. GREEN

No. 26223

Supreme Court of Indiana

February 22, 1935

Proceedings by the State against Herman A. Green on an affidavit charging that defendant, while a member of the city council at Gary, became unlawfully and feloniously interested in a contract entered into by the city. A motion to quash the affidavit was sustained, and the State appeals.

Appeal not sustained.

ROLL and TREANOR, JJ., dissenting.

Appeal from Jasper Circuit Court; Moses R. Leopold, Judge.

Robert G. Estill, of Hammond, and James M. Ogden, Atty. Gen., for the State.

OPINION

HUGHES, Judge.

The appellee was charged by affidavit while being a member of the common council of the city of Gary, Ind., he became unlawfully and feloniously interested in a contract for the painting of certain fire stations in said city of Gary entered into between said city and one William. J. Harris which said contract was authorized and the money appropriated by the common council, of which the appellee was a member.

The prosecution was predicated upon the following affidavit, omitting certain parts not applicable to the case:

'Emzie H. Hahn, being duly sworn, upon his oath says for amended affidavit herein, that on or about the 19th day of January A. D. 1932, at and in the County of Lake, and State of Indiana Herman A. Green was, at the general election, 1929, duly elected a member of the Common Council of the City of Gary, Indiana, and thereafter duly qualified and on the first Monday of January, 1930, entered upon the discharge of the duties of a City Councilman in the said city of Gary, Lake County, Indiana, and that ever since that time and now he has been and is the duly elected, qualified and acting member of the Common Council of the City of Gary, aforesaid; that ever since and prior to the 1st day of January, 1930, and now, the City of Gary, has been and is the owner of certain buildings within the said City of Gary used for fire stations, and that on and prior to the 19th day of January, 1932, the common council of the City of Gary, of which the said Herman A. Green was then and there a member, duly acting as such, appropriated and created and authorized a fund to be paid out of the Treasury of the City of Gary, Indiana, for the purpose of painting the said buildings so used as fire stations aforesaid, and authorized Joseph Shirk, who was then and there and ever since has been the duly qualified and acting Chief of the Fire Department of the said City of Gary aforesaid, to enter into an agreement and contract for the furnishing of paint and labor for the painting of said buildings used as fire stations for the City of Gary aforesaid: and that the said Joseph Shirk acting for and on behalf of said City of Gary and as Chief of the Fire department of said City of Gary, so authorized to enter into such an agreement and contract as aforesaid, did then and there on the 19th day of January, 1932, enter into an agreement and contract with one William J. Harris for the furnishing of the paint and labor in the painting of the buildings used as fire stations as aforesaid, in the sum of $ 1,100.00, to be paid out of aforesaid fund, so provided as aforesaid, by the said City of Gary, and that the said Herman A. Green did then and there unlawfully and feloniously, while acting as such member of said Common Council, become interested in and was a party to said contract and agreement so entered into as aforesaid by and between the Joseph Shirk, Chief of the Fire Department of the said City of Gary aforesaid, and for and on behalf of the said City of Gary, with the said William J. Harris. * * *'

The appellee filed a motion to quash the affidavit for the following reasons:

'1. That the affidavit filed herein charges two distinct offenses in one count, and is therefore bad for duplicity.

'2. That the affidavit filed herein does not state the offense sought to be alleged herein with sufficient certainty.

'3. That the facts stated in the affidavit filed herein do not constitute a public offense for the following reasons:

'(a) That it is not alleged in said affidavit that the City of Gary ever entered into a contract with William Harris.

'(b) That it is not alleged in said affidavit that William Harris ever entered into a contract with the City of Gary.

(c) That it is not alleged in said affidavit that the City of Gary, and William Harris ever entered into a contract for any matter, cause or thing by which any liability or indebtedness was in any way or manner...