State v. Metsker

• Citation: 169 Ind. 555,83 N.E. 241
• Decision Date: 07 January 1908
• Docket Number: No. 21,091.,21,091.
• Parties: STATE v. METSKER.
• Court: Supreme Court of Indiana

169 Ind. 555

83 N.E. 241

STATE

v.METSKER.

No. 21,091.

Supreme Court of Indiana.

Jan. 7, 1908.

Appeal from Circuit Court, Marshall County; Harry Bernetha, Judge.

Clay W. Metsker was indicted for presenting a false and fraudulent claim against Marshall county. From a judgment quashing the indictment, the state appeals. Affirmed.

John A. Molter, Pros. Atty., James Bingham, Atty. Gen., Henry Dowling, Edward M. White, and Alexander G. Cavins, for the State. Charles Kellison, for appellee.

JORDAN, J.

Appellee was indicted in the lower court for having violated section 675 of the public offense act of 1905 (Acts 1905, pp. 584, 750, c. 169), by presenting a false and fraudulent claim and bill to the board of commissioners of Marshall county, Ind. The indictment is in two counts, each of which, on motion of appellee, was quashed, and judgment was rendered discharging him. From this judgment the state appeals, and predicates error on the ruling of the court in quashing each of said counts.

The first count of the indictment charges: “That one Clay W. Metsker, on the fourth day of January, in the year 1906, at said county of Marshall, in the state of Indiana, did then and there knowingly, unlawfully and feloniously make out and present to the board of commissioners of Marshall county, Indiana, for payment, a certain false and fraudulent bill and claim against said county for fifty-four dollars ($54.00), which bill and claim is in the following words and figures, to wit: ‘Marshall county, Indiana, to Clay W. Metsker, Dr. January 4th, 1906. To rate sheet, 3 wks. in Democrat, Jan. 4-11-18, 1906. $54.00. O. K. Jones Grant, County Treasurer. State of Indiana, Marshall County-ss: I, Clay W. Metsker, solemnly swear that the foregoing bill is just and true; so help me God. Clay W. Metsker. Subscribed and sworn to this - day of -, 190-. -, Auditor, by -, Deputy.’ That the services rendered, for which said bill was presented for payment, were for publishing in the Plymouth Democrat, a weekly newspaper published in said county by said Clay W. Metsker, the rate of taxation for the year 1905 for said county. That said bill and claim is false and fraudulent in this, to wit, it is for a too great amount, being too high, is for the sum of fifty-four dollars, when the true and legal rate for the work performed, for which said bill and claim was presented for payment as aforesaid, was and is only forty dollars. That the rate for the work performed for which said bill and claim was presented is fixed by the laws of the state of Indiana, and was so fixed at the time said bill and claim was presented, and all of which was well known to the said Clay W. Metsker at the time he presented said false and fraudulent bill and claim for allowance and payment. That said Clay W. Metsker knowingly and feloniously presented said bill and claim for allowance and payment as a correct bill and claim, then and there knowing the same to be false and fraudulent as aforesaid, and then and there presented said bill and claim to the said board of commissioners for the purpose of procuring the allowance of the said bill and claim in the sum of fifty-four dollars, by said board of commissioners and a warrant on the treasurer of said county for the payment thereof, out of the funds of said county. That said Clay W. Metsker well knew at the time that said bill and claim was presented as aforesaid that the same was for the sum of fourteen dollars in excess of the sum allowed by law and the legal rate therefor.” Section 675, supra, is but a re-enactment of section 2353, Burns' Ann. St. 1901, passed by the Legislature in 1881. The particular part of the section upon which this prosecution is based is as follows: “Whoever, knowing the same to be false or fraudulent, makes out or presents for payment, or certifies as correct to the *** board of commissioners *** any claim, bill, note, *** account, *** or other evidence of indebtedness,false or fraudulent, for the purpose of procuring the allowance of the same or an order for the payment thereof out of the treasury of said *** county, *** shall, on conviction, be imprisoned in the state prison not less than two years, nor more than fourteen years and fined not less than ten dollars nor more than one thousand dollars.”

It will be observed that the alleged false and fraudulent claim or bill, as set out in the indictment, purports upon its face to be a claim or bill for $54 against Marshall county in favor of appellee, and is for the publication in 1906, of the rate sheet for three weeks in the Democrat, the particular dates of publication being stated. The bill appears to have been approved, or O.K.'d, by the treasurer of Marshall county. It is charged that the work performed by appellee for which the bill was presented for payment was for publishing in a weekly newspaper in Marshall county the rate of taxation for the year 1905. The claim is alleged to be false and fraudulent, for the reason that it is too high, being $14 in excess of what, as averred, was the true and legal rate for the work performed, or, in other words, the charge is made that the bill should have been presented for $40 only. There is an entire absence of any averment to show that appellee did not perform or render the service...