State v. Whiteneck
| Decision Date | 31 October 1911 |
| Docket Number | No. 21,731.,21,731. |
| Citation | 96 N.E. 156,176 Ind. 404 |
| Parties | STATE v. WHITENECK. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wabash County; Alvah Taylor, Special Judge.
Ora Whiteneck was acquitted of forgery, and the State appeals. Reversed and remanded.James Bingham, Frank G. Carpenter, Alexander G. Cavins, Edward M. White, and William H. Thompson, for the State.
Appellee was indicted in three counts, which, after charging the formal parts, charged by the first that he did then and there unlawfully, feloniously, falsely, and fraudulently raise, change, deface, and alter a certain instrument in writing, commonly called and known as a receipt for money, purporting to have been made and executed by one Jos. H. Rees to the said Ora Whiteneck for the receipt of a sum of money, to wit, $280, which said raised, changed, defaced, and altered receipt for money is of the following terms, viz.: Here follows the alleged form of the instrument after alteration, which was for the sum of $280, and the alleged altered receipt, which was for $80, both otherwise identical and purporting to be “on contract of Wm. Reeves Ditch,” followed by allegations as to his having fraudulently changed and altered the genuine receipt, and the averment that the defendant raised, changed, defaced and altered the receipt, with intent then and thereby feloniously, falsely, and fraudulently to defraud the said Jos. H. Rees, contrary, etc.
The second count is the same as the first, except that it charges that the change, alteration, and defacement was made with intent then and there and thereby feloniously, falsely, and fraudulently to defraud one Thomas G. Berry, one James F. Morris, and the Summitville Drain Tile Company; that the said Thomas G. Berry and James F. Morris, who were then and there members of said Summitville Drain Tile Company, were then and there on the bond of the said Jos. H. Rees for the construction of a certain drain known as the William Reeves ditch; that the said Ora Whiteneck was then and there the duly appointed and acting superintendent of construction of said drain, and as such superintendent of construction of said drain had let the contract for the construction of said drain to the said Jos. H. Rees: that the said Thomas G. Berry and James F. Morris were the sureties on the bond of the said Jos. H. Rees, as contractor for said ditch; that the Summitville Drain Tile Company is a duly organized and incorporated company doing business by virtue and under the laws of the state of Indiana, and as such furnished the tile that went into the construction of said ditch; that the said Jos. H. Rees left the state of Indiana before he had completed the construction of said ditch, so it became necessary for the said Summitville Drain Tile Company and said Thomas G. Berry and James F. Morris to complete the construction of said ditch; that it therefore became incumbent upon the said Ora Whiteneck, as superintendent of construction of said ditch, to pay said Summitville Drain Tile Company and said Thomas G. Berry and James F. Morris the remainder of the contract price that he (the said Ora Whiteneck) had not already paid to the said Jos. H. Rees, the original contractor; that when the said Summitville Drain Tile Company and said Thomas G. Berry and James F. Morris demanded the money of the said Ora Whiteneck that was due them for completing said ditch, and for tile furnished said ditch, the said Ora Whiteneck claimed that he had paid to the said Jos. H. Rees money that the said Summitville Drain Tile Company and Thomas G. Berry and James F. Morris claimed was due them as aforesaid; and the said Ora Whiteneck also claimed that the aforesaid receipt for money was evidence of part of said money so paid to Jos. H. Rees by said Ora Whiteneck, and that he did not owe the said Summitville Drain Tile Company and said Thomas G. Berry and said James F. Morris the amounts they so claimed, because of said receipt aforesaid. So the grand jury charge that the said Ora Whiteneck did then and there raise, change, deface, and alter said receipt for money, with intent then and there and thereby feloniously, falsely, and fraudulently to defraud the said Summitville Drain Tile Company and the said Thomas G. Berry and the said James F. Morris, contrary, etc.
The third count is the same as the second, except that it charged that as commissioner of construction of the drain appellee afterward, on November 19, 1909, filed his current report in the Wabash circuit court, in which he exhibited and claimed credit for the sum of $280 as having been paid Rees, and did utter, publish, pass as true and genuine said false, raised, changed, defaced, and altered receipt, with intent, etc., to defraud the Summitville Drain Tile Company and said Berry and Morris, well knowing it to be false, raised, changed, altered, and defaced.
The second and third counts were quashed on motion, and the cause was submitted to a jury for trial on the first count. On the trial, the prosecuting witness testified that his name is Joseph H. Rees; that he usually signed his name “Jos. H. Rees,” and has been writing it that way for many years; that his home is Marion, Ind.; that he always votes there, but is out of the county a good deal; that he contracted with appellee, as superintendent of construction, to construct the Reeves ditch; that appellee paid him at various times on the work, and on October 17, 1908, paid him $80 by a check, and the witness gave him a receipt for that amount on the same date, and he identified the signature on the receipt set out in the indictment, and it was by defendant concededto be the same. The state then offered the receipt in evidence, and the defendant objected, for the reason that there was no allegation that Joseph H. Rees, the witness, and Jos. H. Rees, as shown by the receipt, and as alleged in the indictment, were identical, and that the indictment contained no allegation of such identity, nor that the Christian name of Jos. H. Rees was unknown to the grand jury, nor that Joseph H. Rees was the person meant and intended as the person charged in the indictment, and that his testimony that his name is “Joseph” constitutes a fatal variance. This objection was sustained by the court, and the state excepted, and the court charged the jury to return a verdict of not guilty.
Errors are assigned upon the ruling upon the motion to quash the second and third counts, in excluding the receipt signed “Jos. H. Rees,” and in sustaining the motion to instruct the jury to return a verdict of not guilty.
[1] The last alleged error cannot be considered, for the reason that the alleged instruction is embraced in the bill of exceptions containing the evidence, which it has been held cannot be done. Culress v. State, 172 Ind. 257, 87 N. E. 129, 88 N. E. 339, and cases cited.
[2] As to the exclusion of the receipt signed “Jos. H. Rees,” we think the court was...
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