Terrell v. State

Decision Date02 November 1905
Docket NumberNo. 20,474.,20,474.
Citation75 N.E. 884,165 Ind. 443
CourtIndiana Supreme Court


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.


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 providesthat ‘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 indictment, or was made by transcribing it, is, under the circumstances, not a material factor, so far as it can be said to exert any influence over the point as presented upon the face of the indictment. If the copy of the indictment in the record did not correspond to the original, the state should have secured a correction through the means of a certiorari.

An examination and quotation from some of the authorities above cited will fully serve to sustain the conclusion at which we have arrived upon the question involved. In State v. Noland, 29 Ind. 212, the offense was charged to have been committed some nine months after the indictment was found. The court held that under the circumstances the indictment was bad. Judge Frazer, in a separate opinion in that case, said: “I was first inclined to hold that this was merely a repugnant allegation, and therefore not affecting the sufficiency of the pleading, but on reflection I am not able to adopt that conclusion. No other time is alleged elsewhere, and this cannot therefore be rejected. It follows that the indictment charges what is impossible, and cannot therefore legally be regarded as charging anything whatever.” State v. Windell, 60 Ind. 300, was an accusation for betting on the result of an election. The indictment alleged that the defendant on the 14th day of September, 1876, did unlawfully win $5 of and from the person named by unlawfully betting on the result of an election then and there held on the 7th day of November, 1876. The court held the indictment bad because it disclosed that the money was won on September 14, 1876, by betting on the result of an election which did not actually take place until nearly two months thereafter. The court in its opinion affirmed that, under the circumstances, “where the time laid in an indictment is an impossible time, or is beyond the statute of limitations, or at a time when the offense was not punishable by statute, the indictment is bad.” In Murphy v. State, 106 Ind. 96, 5 N. E. 767, 55 Am. Rep. 722, the indictment charged that the defendant, an unlicensed retailer of intoxicating liquors, at the county of Owen, state of Indiana, “on the 16th day of August, 18184, did then and there unlawfully, etc., sell one gill of whisky.” The contention in that appeal was that the trial court erred in overruling the motion to quash, for the reason that the indictment was fatally defective in alleging that the offense was committed at a time subsequent to the return. In this contention the court concurred. The state in that case insisted that, inasmuch as section 1576, Rev. St. 1881, the same being section 1825, Burns' Ann. St. 1901, provides that no indictment shall be quashed or set aside for omitting to state the time at which the alleged offense was committed, or for stating the time imperfectly, therefore the fixing of an impossible date is no longer a cause for quashing an indictment; citing State v. Sammons, 95 Ind. 22. This contention the court denied, affirming, in the course of its opinion, that...

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11 cases
  • Wilson v. State
    • United States
    • Florida Supreme Court
    • October 18, 1938
    ... ... an indictment for resisting process, if the time of the ... commission of the offense is shown by the indictment itself ... to have 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 Ky.Law Rep. 511; State v ... O'Donnell, 81 Me. 271, 17 A. 66; Serpentine v ... State, 1 How., Miss., 256; ... ...
  • White v. State
    • United States
    • Wyoming Supreme Court
    • March 24, 1915
    ...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 67, 39 L. R. A. N. S. 716, and 255 Ill. 531. The Nebraska case follows the Terrell case. The defect was one of substance and c......
  • People v. Weinstein
    • United States
    • Illinois Supreme Court
    • October 26, 1912
    ...67;Markley v. State, 10 Mo. 291;Murphy v. State, 106 Ind. 96, 5 N. E. 767,55 Am. Rep. 722;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. After the writ of error was sued out of the Appellate Court, the people, upon notice to the pl......
  • White v. State
    • United States
    • Wyoming Supreme Court
    • May 10, 1915
    ...on petition for rehearing. Texas has codified the common law principle that an allegation of cause is essential. (2 L. R. A. N. S. 253). The Terrell clearly holds that an information charging an offense, as committed on an impossible date, charges no offense; time is an essential ingredient......
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