Switzer v. State
| Decision Date | 29 April 1937 |
| Docket Number | 26763. |
| Citation | 8 N.E.2d 80,211 Ind. 690 |
| Parties | SWITZER et al. v. STATE. |
| Court | Indiana Supreme Court |
Appeal from St. Joseph Circuit Court; Dan Pyle, Judge.
Harry Taylor, Du Comb & Du Comb, and A. Noel Du Comb, all of South Bend, for appellants.
Omer Stokes Jackson, Atty. Gen., Glen L. Steckley, Deputy Atty Gen., and Caleb J. Lindsey, Asst. Atty. Gen., for the State.
This is an appeal from a judgment of conviction of the appellants for the crime of conspiracy. The appellants contend that the court erred in (a) overruling appellants' motion to quash the indictment; (b) overruling appellants' motion in arrest of judgment; and (c) overruling appellants' motion for a new trial.
It is insisted by appellants that their motion to quash the indictment should have been sustained for the reason, (a) that the facts stated in the indictment do not constitute a public offense; (b) that the indictment does not state the offense with sufficient certainty.
More than 55 reasons are assigned by appellants in their motion for a new trial, the greater number of which are based upon the giving or refusal to give certain instructions. It is also alleged in their motion that the verdict of the jury is contrary to law and is not sustained by sufficient evidence.
The indictment upon which the prosecution is based is as follows:
'The Grand Jury of St. Joseph County, State of Indiana, on their oaths present that on or about the ___ day of July, A. D 1935, at the county of St. Joseph and State of Indiana, one Otto Switzer, being then and there a duly elected, qualified and acting constable of Portage Township in Said County, and one William Bushong being then and there a duly appointed qualified and acting constable of Clay Township in said County, the said Otto Switzer and William Bushong being then and there peace officers charged with the duty of arresting persons committing crimes in their presence in said county, hereinafter called defendants, did then and there unlawfully, knowingly and feloniously unite, combine, conspire, confederate and agree to and with each other, for the object and purpose and with the unlawful and felonious intent, then and there and thereafter to commit divers felonies in violation of the laws of the State of Indiana, that is to say, unlawfully, feloniously and corruptly to ask, solicit, demand and accept divers sums of money, good and lawful money of the United States, the exact amount and value thereof being to the grand jurors unknown, as a bribe and bribes, from Emerence Verwilst, Fred Buysse, Anton Husvar, Julia Nagy, Anna Babicz, and Adam Piechocki, and divers other persons whose names are to the grand jurors unknown, which said named and unknown persons would then and there and thereafter, commit and be found committing divers offences in violation of the Indiana Alcoholic Beverages Act of 1935 (Acts 1935, c. 226), in their, the said defendants' presence, that is to say, that they, the said named and unknown persons, would, with the knowledge and consent of defendants, in violation of the Indiana Alcoholic Beverages Act of 1935, in their, the said defendants' presence, that is to say, that they, the said named and unknown persons, would, with the knowledge and consent of defendants, in violation of the Indiana Alcoholic Beverages Act of 1935, unlawfully possess stills and distilling apparatus, and would unlawfully manufacture, possess, keep for sale, sell, barter, furnish and give away alcoholic beverages, a more particular description of which said offenses being to the grand jurors unknown, which said divers sums of money would be paid and given over to said defendants by said named and unknown persons with the intent and in consideration that they, the said defendants, as said officers, would be feloniously, corruptly and unlawfully influenced with respect to their official duty and be influenced in their official action, in this, that said defendants would not arrest, prefer charges against or prosecute the said Emerence Verwilst, Fred Buysse, Anton Husvar, Julia Nagy, Anna Babicy and Adam Piechocki and said divers other, unknown persons as aforesaid for said violations of said Alcoholic Beverages Act as aforesaid, but would then and there unlawfully, feloniously and corruptly refrain from and fail and refuse to arrest, prefer charges against or prosecute said named and unknown persons, and for the further unlawful and felonious object and purpose and with the intent unlawfully, feloniously and knowingly to personate and represent other persons, to-wit, at certain times and to certain persons, federal officers and at certain other times and to certain other persons, State Police officers, a more particular description of which said intended personations being to the grand jurors unknown, to one Emerence Verwilst, one Fred Buysse, one Anton Huszar, one Julia Nagy, one Anna Babicz and one Adam Piechocki, and divers other unknown persons whose names are to the grand jurors unknown, and to them and there in such assumed character, feloniously and falsely receive divers sums of money, the exact amount and particular description of which being to the grand jurors unknown which the said named and unknown persons would then and there intend to deliver to said federal officers and State Police officers with the felonious intent, on the part of said defendants, then and there to convert the said divers sums of money to their own use, and for the further unlawful and felonious object and purpose, and with the intent, unlawfully, feloniously, knowingly and falsely to pretend to one Emerence Verwilst, one Fred Buysse, one Anton Huszar, one Julia Nagy, Anna Babicz and one Adam Piechocki and divers other persons whose names are to the grand jurors unknown, with the intent then and there and by such false pretenses, to cheat and defraud the said named and unknown persons aforesaid, for the purpose of obtaining from said named and unknown persons aforesaid certain divers sums of money, the exact amount and value thereof being to the grand jurors unknown, that they, the said defendants, were federal officers and State police officers, as aforesaid, and as such federal officers and State police officers, would not arrest, prefer charges against or prosecute said named and unknown persons aforesaid, for violation of the Indiana Alcoholic Beverages Act of 1935, or of the Internal Revenue Laws of the United States, if they, the said named and unknown persons, would pay and give to them, the said defendants, said divers sums of money aforesaid; that the said named and unknown persons aforesaid, relying upon the said representations of the said defendants and their false pretenses as aforesaid, and believing the same to be true, and being thereby deceived, and having no means of ascertaining the contrary, would then and there pay and give to said defendants, and said defendants would then and there and thereby receive and obtain, from said named and unknown aforesaid persons, possession, by means of their, the said defendants', false pretenses as aforesaid, of the said divers sums of money aforesaid, to the injury of the said named and unknown persons aforesaid, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Indiana.'
It is apparent that the indictment attempts to charge the crime of conspiracy to commit three felonies, to wit: (a) Soliciting a bribe; (b) false personation; and (c) obtaining money by false pretense. It is conceded by the appellants that the indictment properly charges a conspiracy to commit the felony of soliciting a bribe but that it fails to properly charge the felonies of obtaining money by false pretense and false impersonation.
In considering an affidavit or indictment, certain statutory provisions should be kept in mind. Section 2224, Burns' 1926, section 9-1126, Burns' 1933, section 2205, Baldwin's Ind.St.1934, provides:
And it is further provided by section 2225, Burns' 1926, section 9-1127, Burns' 1933, section 2206, Baldwin's Ind.St.1934, that 'No indictment or affidavit shall be deemed invalid, nor shall the same be set aside or quashed * * * for any * * * defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.'
It is also a rule of law that no more certainty is required in criminal cases than in civil cases and all that is necessary is that the allegations be certain to a common intent. Agar v. State (1911) 176 Ind. 234, 94 N.E. 819, 823; Whitney v. State (1934) 206 Ind. 562, 188 N.E. 779. And, as said in the case of Agar v. State, supra,
'The true test of the sufficiency of an indictment is whether the material averments thereof are stated with such certainty as to apprise the defendant of the nature and cause of the charge against him.'
It is provided in section 10-1101, Burns' 1933, section 2909 Baldwin's Ind.St.1934, as follows: 'Any person or persons who shall unite or combine with any other person or persons for the purpose of committing a felony, within or without this state; or any person or persons who shall knowingly unite with any other person or persons, body, association or combination of persons, whose object is the commission of a felony or felonies, within or without this state, shall, on conviction, be fined not less than twenty-five dollars ($25.00) nor...
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