State v. Reichert

• Decision Date: 22 April 1948
• Docket Number: 28336.
• Citation: 78 N.E.2d 785,226 Ind. 171
• Parties: STATE v. REICHERT.
• Court: Indiana Supreme Court

78 N.E.2d 785

226 Ind. 171

STATE v. REICHERT.

No. 28336.

Supreme Court of Indiana

April 22, 1948

Appeal from Vanderburgh Circuit Court; John A. Posey, Special judge.

Cleon H. Foust, Atty. Gen., and Frank Coughlin and Geo. W. Hadley Dep. Attys. Gen., (Milford M. Miller, Pros. Atty., of Evansville, of counsel), for appellant.

Manson L. Reichert, W. D. Hardy, Benj. Zieg and Lockyear &amp Lockyear, all of Evansville, for appellee.

O'MALLEY Judge.

An indictment in nine counts was returned against the appellee in Vanderburgh County, Indiana. Motions to quash were sustained as to counts numbered three, four, five, six, eight and nine, and no questions are raised as to those rulings. Three motions were filed and addressed to counts numbered one, two and seven of the indictment. The court sustained the motions as to the three counts, and 30 days were granted to the State of Indiana to return an amended indictment or to file an affidavit. The State informed the court that it refused to plead further and desired to appeal, and judgment was then entered discharging the appellee from custody, and from that judgment the State appealed to this court.

The three counts of the indictment except as to date of occurrence, amount of money received and the person from whom it was received were, omitting formal parts, each as follows:

'The Grand Jurors for the County of Vanderburgh and State of Indiana, upon their oaths, present and charge that Manson L Reichert on or about the 17th day of June, A. D. 1945, at said County being then and there a member of and the Chairman of a political committee, to-wit: The Vanderburgh County Republican Central Committee, did then and there unlawfully and corruptly collect and receive money, to-wit: the sum of Five Thousand Dollars ($5,000.00), from one Alvin R. Brown, for political purposes, a more exact nature of which is is unknown to the Grand Jury, and did then and there unlawfully and corruptly fail to pay over and make the same to pass through the hands of the duly appointed Treasurer of said political committee. Contrary to the form of the Statute, in such cases made and provided, and against the peace and dignity of the State of Indiana.'

Two of the grounds asserted in the motions to quash were that the facts stated in the indictment did not constitute a public offense and that the indictment did not state the offense with sufficient certainty.

The appellee asserts that counts numbered one, two and seven of the indictment charged the appellee with three distinct offenses not growing out of the same transaction, and that such counts were improperly joined in the one indictment.

In Strickland v. State, 1940, 217 Ind. 588, 591, 29 N.E.2d 950, 951, this court in ruling on a claimed error of the lower court in overruling a motion in arrest of judgment, made this statement:

'It is true that the pleading of separate and distinct offenses, created by separate and distinct acts of the statute, or by separate statutes, is forbidden, * * *.'

A motion to quash tests the sufficiency of an indictment or affidavit in the same manner as a demurrer tests the sufficiency of a complaint in a civil action. Scott v. State, 1911, 176 Ind. 382, 96 N.E. 125. However, since the statute authorizing the motion to quash sets out the specific grounds upon which it can be based, but does not provide for a memorandum, a motion drawn under the statute, covers all faults appearing on the face of the pleading which are included in the cause asserted whether or not the particular ground has been specifically called to the attention of the lower court. Lynn v. State, 1934, 207 Ind. 393, 193 N.E. 380.

In Rokvic v. State, 1924, 194 Ind. 450, 454, 143 N.E. 357, 358, it is said:

'If an affidavit shows upon its face that separate offenses, relating to different transactions are improperly joined in different counts, the affidavit may be quashed.'

The appellee in the instant case filed motions to quash drawn in conformity with the statute, § 9-1129, Burns' 1942 Replacement. Said motions specified causes numbered one, two and four thereof.

The first count of the indictment is based upon the receipt of money on June 17, 1945, from Alvin R. Brown; the second count of the indictment is based upon receipt of money on October 12, 1946, from Alvin R. Brown; and the seventh count of the indictment is based upon receipt of money on May 1, 1946, from Benjamin H. Bartlett and Clarence Coogan. It was charged that the appellee received the sums named in the indictment and corruptly failed to pay the same over to the appointed treasurer of the committee, in violation of § 29-5703, Burns' 1933 (Supp.).

As we view the matter the receipt and failure to pay over is the gist of the offense. There were three separate times when money was charged to have been received, and the receipt of the money was on three occasions each of which was separated from the others by six months of time. There is nothing alleged which shows the three acts to be related in point of time or purpose. They were not matters that arose out of the same transaction, but must have been three separate transactions. See Joslyn v. State, 1891, 128 Ind. 160, 27 N.E. 492, 25 Am.St.Rep. 425; Ewbank's Indiana Criminal Law, 2d Ed., § 327, p. 200.

Each count alleged that the appellee was chairman of the Vanderburgh County Republican Central Committee. As we understand the law, the chairman of a county committee is, by virtue of his office as such, a member of the district committee of the same party. Each of these committees should have a treasurer. The appellee could collect for either or for both committees. Under the indictment each allegation could be true and yet the appellee would be guilty of no wrong. If he collected for and paid to the treasurer of the district committee, the county committee would not...