Strickland v. State, 27392.

• Docket Nº: No. 27392.
• Citation: 29 N.E.2d 950, 217 Ind. 588
• Case Date: November 25, 1940
• Court: Supreme Court of Indiana

217 Ind. 588
29 N.E.2d 950

STRICKLAND
v.
STATE.

No. 27392.

Supreme Court of Indiana.

Nov. 25, 1940.

Leonard D. Strickland was convicted of uttering a forged conditional sales contract and note, and he appeals.

Reversed with instructions.

[29 N.E.2d 950]

Appeal from Daviess Circuit Court; Eldo W. Wood, Special judge.
Dobbyn & Lehman and Hyatt & Donaldson, all of Washington, for appellant.

Omer S. Jackson, Atty. Gen., and Rex A. Boyd, Deputy Atty. Gen., for appellee.

SWAIM, Chief Justice.

The appellant was prosecuted in Daviess County, in the State of Indiana, on an amended affidavit which charged ‘that at and in the county of Daviess, State of Indiana, on or about the 6th day of April, 1939, Leonard D. Strickland (the appellant) did then and there unlawfully, feloniously, falsely, fraudulently and knowingly, forge, counterfeit, make, cause to be falsely made, utter, publish, pass, assign, indorse and deliver, to the Bicknell Finance Company, Inc., as true and genuine a certain false, forged, counterfeit conditional sales contract and note, for the payment of money to-wit:-$440.00.’ The affidavit further charged that the conditional sale contract and note purported to have been made by one Hugo Albrecht in favor of the appellant, who assigned and delivered the same to said Bicknell Finance Company, Inc., which company paid to the appellant for said assigned conditional sale contract and

[29 N.E.2d 951]

note the sum of $437.90; that the appellant did all of this with the intent to thereby feloniously, falsely and fraudulently defraud the said Bicknell Finance Company, Inc., and that the said appellant knew the said conditional sale contract and note to be false, forged, and counterfeit. A copy of said conditional sale contract and of said note were attached to and made a part of the affidavit. To this amended affidavit the defendant entered a plea of not guilty. On the trial the jury returned a verdict finding the defendant ‘guilty of uttering the conditional sales contract and note, as charged in the affidavit and that his age is 43 years.’ On this verdict the court entered a judgment that the defendant was guilty of uttering the sale contract and note, as charged in the affidavit and found by the jury, and sentenced him to the Indiana State prison for a period of two to fourteen years.

The appellant relies for reversal on three alleged errors, (1) that the court erred in overruling the appellant's motion for a new trial, (2) that the court erred in overruling the appellant's motion in errest of judgment, and (3) that the court did not have jurisdiction of the subject matter of the action.

Under his motion in arrest of judgment the appellant attacks the amended affidavit, contending that charging in one count the offense of forgery and also the offense of uttering a forged instrument, as these defenses are defined by § 10-2102, Burns' 1933, § 2746, Baldwin's 1934, makes the amended affidavit bad for duplicity. With this contention we can not agree. Said statute provides that ‘Whoever falsely makes, or assists in making * * * forges * * *, or causes to be falsely made, * * * forged, counterfeited * * *, any record or authentic matter of a public nature, * * * bank bill or note, * * * promissory note for the payment of money or other property, * * * or any other instrument in writing, with intent to defraud any person, body politic or corporate, or utters or publishes as true any such instrument or matter, knowing the same to be false, defaced, altered, forged, counterfeited, falsely printed or photographed, with intent to defraud any person, body politic or corporate, shall, on conviction, be imprisoned in the state rpison not less than two (2) years nor more than fourteen (14) years, and fined not less than ten dollars ($10.00) nor more than one thousand dollars ($1,000).’

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, but where, as here, a criminal statute enumerates several acts disjunctively, and provides the same punishment for doing any one or all of said acts, then two or more of said acts may be charged conjunctively in a single count without objection for duplicity. State v. Fidler, 1897, 148 Ind. 221, 222, 47 N.E. 464. See, also, Glaser v. State, 1932, 204 Ind. 59, 62, 183 N.E. 33;State v. Schipper, 1923, 193 Ind. 595, 598, 141 N.E. 330; Selby v. State, 1904, 161 Ind. 667, 672, 69 N.E. 463. The amended affidavit in this case charged conjunctively the acts of forging...