Terrell v. State, No. 20,474.

Docket NºNo. 20,474.
Citation75 N.E. 884, 165 Ind. 443
Case DateNovember 02, 1905
CourtSupreme Court of Indiana

165 Ind. 443
75 N.E. 884

TERRELL
v.
STATE.

No. 20,474.

Supreme Court of Indiana.

Nov. 2, 1905.


Appeal from Circuit Court, Wells County; John M. Smith, Special Judge.

John W. Terrell was convicted of murder, and he appeals. Reversed.


A. L. Sharpe, C. E. Sturgis, R. W. Stine, C. H. De Lacour, R. S. Gregory, and Robt. Landfair, for appellant. C. W. Miller, Atty. Gen., John Burns, Pros. Atty., C. C. Hadley, W. C. Geake, and L. G. Rothschild, for the State.

JORDAN, J.

On the 12th day of September, 1903, a grand jury of the Wells circuit court returned an indictment against appellant, John W. Terrell, charging him with the crime of murder in the first degree. He unsuccessfully moved the lower court to quash the indictment, and then entered a plea of not guilty, and also filed a special answer, wherein he averred that at the time the alleged offense was committed he was a person of unsound mind. The state's reply to the special answer was a general denial. The case, upon issues joined, was tried by a jury, and a verdict returned convicting him of murder in the first degree, and assessing his punishment at imprisonment in the State's Prison during life. Upon this verdict the court, over appellant's motion for a new trial, pronounced judgment.

The errors assigned and relied upon for a reversal are: (1) Overruling the motion of appellant to quash the indictment; (2) denying his motion in arrest of judgment; (3) overruling the motion for a new trial; (4) error of the trial court in pronouncing judgment on the verdict, for the reason that at the time of the rendition of the judgment appellant was a person of unsound mind, incapable of understanding and comprehending what was being done; and (5) error of the court in refusing to permit appellant to file a supplemental motion for a new trial.

The indictment in this case consists of one count, and it is therein alleged that John W. Terrell, on the 12th day of July, in the year 18903, at the county of Wells and state of Indiana, then and there unlawfully, feloniously, etc., did kill and murder Melvin Wolfe by shooting, etc. Appellant's counsel contend that the court erred in overruling the motion to quash, for the reason that it is apparent on the face of the pleading that the commission of the alleged offense was on an impossible date, or, in other words, for the reason that it is disclosed upon the face of the indictment that the crime was committed after the return of the indictment, and therefore the latter is fatally defective on a motion to quash. The general rule applicable to criminal procedure is that the time of the alleged commission of an offense, as stated in the indictment or information, must not be shown on the face of such pleading to be subsequent to the return of the indictment or the filing of the information, but must appear to be anterior or prior thereto. If the time of the commission of the crime is disclosed to antecede the return of the indictment, then the time stated must not appear to be so long prior to the return as to bring the case beyond the statute of limitations, provided it is one to which the latter statute applies. The general rule above asserted is one well settled by our own decisions and other authorities, except so far as it can be said to have been abrogated by statute. See State v. Noland, 29 Ind. 212;State v. Windell, 60 Ind. 300;Hutchinson v. State, 62 Ind. 556;Murphy v. State, 106 Ind. 96, 5 N. E. 767, 55 Am. Rep. 722;Trout v. State, 107 Ind. 578, 8 N. E. 618; Gillett's Criminal Law, § 131. See, also, Commonwealth v. Doyle, 110 Mass. 103;State v. Sexton, 10 N. C. 184, 14 Am. Dec. 584;State v. O'Donnell, 81 Me. 271, 17 Atl. 66;Markley v. State, 10 Mo. 291;State v. Smith, 88 Iowa, 178, 55 N. W. 198;McJunkins v. State, 37 Tex. Cr. R. 117, 38 S. W. 994;Dickson v. State, 20 Fla. 800;Serpentine v. State, 1 How. (Miss.) 256; Wharton, Crim. Law, § 274; Wharton on Homicide, § 788; Chitty, Crim. Law, *p. 225.

The Attorney General, in his answer to the contention of appellants counsel in respect to the insufficiency of the indictment in controversy, says: “(1) The court will observe that the copy of the indictment in the record shows the figures 8 and 9 without any space between them. To get at the real cause of this alleged error, it is necessary to examine the original indictment, where the trouble concerning the statement of the date will readily be observed. (2) It may be said that the statement of time is so far imperfect as to fall within the provisions of section 1825, Burns' Ann. St. 1901, which provides

[75 N.E. 885]

that ‘no indictment or information shall be deemed invalid, nor shall the same be set aside or quashed *** for any of the following defects: *** Eighth. For omitting to state the time at which the offense was committed in any case in which time is not the essence of the offense; nor for stating the time imperfectly unless time is of the essence of the offense.”’ It must be remembered that the copy of indictment as it appears in the record imports absolute verity, and we cannot resort to anything dehors the record for the purpose of contradicting it. In Buckner v. State, 56 Ind. 210, the record stated that the grand jury had returned into court an “indictment burned.” This court in that case, in considering the question in respect to the truth of the record, said: “The record of this cause filed in this court imports to us ‘absolute verity,’ and from this record we are bound to conclude that at the time of the trial of this case nothing but ashes remained of the indictment against the appellant in the court below.”

It is a well-settled rule of appellate procedure that all questions presented in the appeal must be tried and determined by the record as certified to the appellate tribunal. This rule is one universally affirmed and enforced by our decisions. Whether the statement of the time in question is a mistake which occurred in drafting the...

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21 practice notes
  • White v. State, 776
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1915
    ...the offense was committed is alleged as 19013, hence the information charges an impossible act and is null and void. (Terrell v. State, 165 Ind. 443, 75 N.E. 884, 2 L. R. A. N. S. 251.) The Terrell case is cited in 90 Nebr. 67, 39 L. R. A. N. S. 716, and 255 Ill. 531. The Nebraska case foll......
  • Boos v. State , No. 22,548.
    • United States
    • Indiana Supreme Court of Indiana
    • April 30, 1914
    ...been raised by a proper motion to quash below, it would have been error to overrule it, under the following cases: Terrell v. State (1905) 165 Ind. 443, 75 N. E. 884, 2 L. R. A. (N. S.) 251, 112 Am. St. Rep. 244, 6 Ann. Cas. 851;Trout v. State (1886) 107 Ind. 578, 8 N. E. 618;State v. Nolan......
  • Wilson v. State
    • United States
    • United States State Supreme Court of Florida
    • October 18, 1938
    ...been after the return day of the process, it is fatally defective on error.' And support of the text will be found in Terrell v. State, 165 Ind. 443, 75 N.E. 884, 2 L.R.A.,N.S., 251, 112 Am.St.Rep. 244, 6 Ann.Cas. 851; Walters v. State, 5 Iowa 507; Commonwealth v. Aultmire, 58 S.W. 369, 22 ......
  • Greichunos v. State, No. 4-483A125
    • United States
    • Indiana Court of Appeals of Indiana
    • December 27, 1983
    ...dismiss. Obie v. State, (1952) 231 Ind. 142, 106 N.E.2d 452, cert. den. 344 U.S. 935, 73 S.Ct. 506, 97 L.Ed. 719; Terrell v. State, (1905) 165 Ind. 443, 75 N.E. Here, the face of the information reveals the prosecution is untimely. The State has made no allegations of concealment or any oth......
  • Request a trial to view additional results
22 cases
  • White v. State, 776
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1915
    ...the offense was committed is alleged as 19013, hence the information charges an impossible act and is null and void. (Terrell v. State, 165 Ind. 443, 75 N.E. 884, 2 L. R. A. N. S. 251.) The Terrell case is cited in 90 Nebr. 67, 39 L. R. A. N. S. 716, and 255 Ill. 531. The Nebraska case foll......
  • Boos v. State , No. 22,548.
    • United States
    • Indiana Supreme Court of Indiana
    • April 30, 1914
    ...been raised by a proper motion to quash below, it would have been error to overrule it, under the following cases: Terrell v. State (1905) 165 Ind. 443, 75 N. E. 884, 2 L. R. A. (N. S.) 251, 112 Am. St. Rep. 244, 6 Ann. Cas. 851;Trout v. State (1886) 107 Ind. 578, 8 N. E. 618;State v. Nolan......
  • Wilson v. State
    • United States
    • United States State Supreme Court of Florida
    • October 18, 1938
    ...been after the return day of the process, it is fatally defective on error.' And support of the text will be found in Terrell v. State, 165 Ind. 443, 75 N.E. 884, 2 L.R.A.,N.S., 251, 112 Am.St.Rep. 244, 6 Ann.Cas. 851; Walters v. State, 5 Iowa 507; Commonwealth v. Aultmire, 58 S.W. 369, 22 ......
  • Greichunos v. State, No. 4-483A125
    • United States
    • Indiana Court of Appeals of Indiana
    • December 27, 1983
    ...dismiss. Obie v. State, (1952) 231 Ind. 142, 106 N.E.2d 452, cert. den. 344 U.S. 935, 73 S.Ct. 506, 97 L.Ed. 719; Terrell v. State, (1905) 165 Ind. 443, 75 N.E. Here, the face of the information reveals the prosecution is untimely. The State has made no allegations of concealment or any oth......
  • Request a trial to view additional results

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