State v. Schell, No. 30946
| Docket Nº | No. 30946 |
| Citation | 224 N.E.2d 49, 248 Ind. 183 |
| Case Date | March 10, 1967 |
Page 49
v.
Harry SCHELL, Appellee.
Rehearing Denied April 18, 1967.
[248 Ind. 185]
Page 50
John J. Dillon, Atty. Gen., Raymond I. Klagiss, Douglas B. McFadden, Deputy Attys. Gen., for appellant.Harry Schell, pro se.
ARTERBURN, Chief Justice.
This is an appeal from a decision of the Lake Criminal Court which sustained appellee's motion to quash the State's indictment for violation of the Public Purchase Act. The indictment was in one count and read as follows:
'The Grand Jurors of Lake County, in the State of Indiana, good and lawful men, duly and legally impaneled, charged and sworn to inquire into felonies and certain misdemeanors in and fore (sic) the body of said County of Lake, in the name and by the authority of the State of Indiana, on their oaths present that beginning on the 14th day of March 1961 and continuing to and including the 19th day of December, A.D. 1961, at said County and State aforesaid, JOHN VISCLOSKY, HARRY SCHELL and HAROLD SWEIG were during said entire period of time the duly and legally appointed, qualified and acting members of the Board of Public[248 Ind. 186] Works and Safety, of the City of Gary, in Lake County, Indiana, and did all during said times constitute said Board of Public Works and Safety of said City of Gary; that as said Board of Public Works and Safety and as members thereof during all of the time they and each of said defendants were members of said board, they and each of them were duly authorized and empowered by
Page 51
law and delegated and entrusted with authority to make purchases of material and materials, equipment, goods and supplies, payment for which was to be made from an appropriation or appropriations of public funds made under the provisions of the budget law of the State of Indiana for various units of city government of the Civil City of Gary, Indiana:'That at and in the County of Lake and State of Indiana, and on various and diverse dates between the date of March 14, 1961, and December 19, 1961, the said JOHN VISCLOSKY, HARRY SCHELL and HAROLD SWEIG acting as members of said Board of Public Works and Safety of said City of Gary, Indiana did then and there unlawfully purchase, on open market, for said civil City of Gary, fuel oil in excess of $1,000.00 to-wit: in the amount of $18,545.00 from General Coal and Oil Company, inc., the Acme Oil and Supply and Monarch Oil and Supply Co.; that said purchases were made unlawfully by said defendants, in that they were not on a unit basis; were in excess of the amount of.$1000.00; were under two or more contracts and were made without preparing of specifications describing with reasonable particularity the kind, quantity and quality of all fuel oil needed by said City of Gary for the period from March 14, 1961 to December 19, 1961; that said defendants unlawfully failed to give public notice of the time and place for receiving of bids and the letting of contracts for such purchases which purchases were not for current utility bills, all as required by the law of the State of Indiana; said acts of said defendants, then and there being contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of indiana.'
Three persons, members of the Board of Public Works of the City of Gary, were charged in the indictment, including the appellant. The other two pleaded guilty and were sentenced accordingly.
Appellee has made a motion to dismiss this appeal on the ground that the same was not timely filed.
[248 Ind. 187] It appears that on September 29, 1965 the trial court sustained appellee's motion to quash the indictment. However, the appellee was not discharged nor were the sureties released from their bond. Thereafter the State filed a motion to reconsider the ruling of the court and the court, after another hearing on February 2, 1966, denied the State's motion to reconsider and at that time ordered that appellee be discharged and the sureties on the recognizance bond be released.
It is contended by the appellee that the judgment appealed from was that of September 29, 1965 and not that of February 2, 1966, and therefore the appeal was not filed within time. With this we do not agree. In our opinion, the final judgment was entered on February 2, 1966 when the court, by its order in discharging the appellee and his sureties, indicated a finality in its actions.
Appellee cites State v. McCarty (1962), 243 Ind. 361, 185 N.E.2d 732 for authority that the sustaining of a motion to quash is a final judgment. In that case we said:
'* * * (T)he mere sustaining of the motion to quash is not a final judgment. It is only where the state, has by its appeal, elemented to stand on the charges filed that this court has treated the sustaining of a motion to quash as a final judgment.' (Our italics)
In this case something remained to be done, namely, the discharge of the appellee and the release of his sureties. The State was entitled to be given a reasonable time to file an amended affidavit or seek a second indictment. The court saw fit also to accept the motion to reconsider and thus the case, as to final determination, was stayed until the final action of the court. We hold, therefore, that the appeal was filed within time.
Page 52
It is further contended that this appeal should be dismissed for the reason that appellant's petition for extension of time [248 Ind....
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Defries v. State, No. 975S223
...ultimate facts must be proved need not be alleged in an indictment or affidavit. State v. Schell (1967), 248 [264 Ind. 237] Ind. 183, 224 N.E.2d 49. Therefore, the omission from the charging affidavit herein of the specific acts from which the appellant's intent was inferred by the trier of......
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Defries v. State, No. 3-574A73
...evidentiary facts from which such ultimate facts must be proved need not be alleged in an indictment or affidavit. State v. Schell (1967), 248 Ind. 183, 224 N.E.2d 49. Therefore, the omission from the charging affidavit herein of the specific acts from which the appellant's intent was infer......
-
Eby v. State, No. 572A229
...efforts to leave the place through a door, but he was restrained from so doing by Miss Conour.' Coleman, supra, 248 Ind. at 139, 224 N.E.2d at 49. In neither Coleman nor Smith did the court address itself to the hypothetical question of whether the evidence would have sustained a conviction......
-
State v. Cox
...without detailing reasons therefor. In virtually identical situations courts of other states have recently held so. State v. Schell, 248 Ind. 183, 224 N.E.2d 49 (1967); Wheeler v. State, 220 Tenn. 155, 415 S.W.2d 121 REFUSAL TO ALLOW DEFENDANT TO INSPECT GRAND JURY MINUTES. Defendant moved ......
-
Defries v. State, No. 975S223
...ultimate facts must be proved need not be alleged in an indictment or affidavit. State v. Schell (1967), 248 [264 Ind. 237] Ind. 183, 224 N.E.2d 49. Therefore, the omission from the charging affidavit herein of the specific acts from which the appellant's intent was inferred by the trier of......
-
Defries v. State, No. 3-574A73
...evidentiary facts from which such ultimate facts must be proved need not be alleged in an indictment or affidavit. State v. Schell (1967), 248 Ind. 183, 224 N.E.2d 49. Therefore, the omission from the charging affidavit herein of the specific acts from which the appellant's intent was infer......
-
Eby v. State, No. 572A229
...efforts to leave the place through a door, but he was restrained from so doing by Miss Conour.' Coleman, supra, 248 Ind. at 139, 224 N.E.2d at 49. In neither Coleman nor Smith did the court address itself to the hypothetical question of whether the evidence would have sustained a conviction......
-
State v. Cox
...without detailing reasons therefor. In virtually identical situations courts of other states have recently held so. State v. Schell, 248 Ind. 183, 224 N.E.2d 49 (1967); Wheeler v. State, 220 Tenn. 155, 415 S.W.2d 121 REFUSAL TO ALLOW DEFENDANT TO INSPECT GRAND JURY MINUTES. Defendant moved ......