The State v. Gross
| Decision Date | 23 May 1911 |
| Docket Number | 21,761 |
| Citation | 95 N.E. 117,175 Ind. 597 |
| Parties | The State of Indiana v. Gross |
| Court | Indiana Supreme Court |
From Wabash Circuit Court; A. H. Plummer, Judge.
Prosecution by The State of Indiana against Otto Gross. From a judgment for defendant, the State appeals.
Appeal not sustained.
James Bingham, Attorney-General, A. G. Cavins, E. M. White, William H. Thompson and Frank G. Carpenter, for the State.
D. F Brooks, C. W. Watkins and Charles A. Butler, for appellee.
This prosecution was originally instituted in the Huntington Circuit Court, on an affidavit purporting to charge appellee with the crime of perjury, committed by falsely testifying at the trial of a certain cause in the city court of Huntington. The defendant's plea was "Not guilty." The case was venued to the Wabash Circuit Court, wherein it was tried by a jury. At the conclusion of the State's evidence, the court, on the motion of the defendant, directed the jury to return a verdict in favor of the accused, which it did, and thereupon a judgment was rendered discharging defendant. The State appeals.
The affidavit upon which the case was tried alleges that an action was brought in the city court of Huntington, Indiana wherein Eugene Redlinger was defendant and The State of Indiana was plaintiff; that on January 31, 1910, said cause came on for trial and hearing before the Honorable Milo Feightner, the duly elected, qualified and acting judge of said city court, sitting as such judge, and that then and there said Otto Gross presented himself as a witness; that said Gross was duly sworn by said judge, who had authority then and there to administer said oath, to give true evidence in said cause, whereupon said Gross did then and there, on his oath as aforesaid taken, feloniously, wilfully, etc.
The State at the trial introduced Milo Feightner, who testified that on January 31, 1910, he was the duly elected and qualified mayor of the city of Huntington, Huntington county, Indiana, and that he had been the mayor of that city since January 1, 1910; that on January 31, 1910, he sat as judge in the case of The State of Indiana v. Eugene Redlinger, on a charge of making an illegal sale of intoxicating liquor. He testified that he never had been elected city judge of the city of Huntington, and further stated that he acted as judge at the trial of said cause because he was the mayor of the city of Huntington.
The lower court held that there was a fatal variance between the proof established by this evidence and the allegations in the affidavit, and directed an acquittal of the defendant, on account of such variance. By § 215 of the cities and towns statute of 1905 (Acts 1905 p. 219, § 8840 Burns 1908) it is declared that
Section 8644 Burns 1908, Acts 1905 p. 219, § 43, provides that "the elective officers of the cities of this State shall consist of a mayor, a city judge, a city clerk, a city treasurer, and councilmen as hereinafter provided, * * * and second, that, in cities of the fifth class, the powers and duties of city judge shall devolve wholly upon the mayor."
We judicially know that the city of Huntington, according to the United States census, has a population of fewer than ten thousand, and, under the classification made by the act of 1905, supra, and the act of 1909 (Acts 1909 p. 13), is a city of the fifth class, and therefore is not authorized to elect a judge of a city court. The duties and powers of such judge, as shown by the provisions of said act of 1905, devolve upon, and are to be performed by the mayor of that city.
In the affidavit there is no allegation whatever to show that Milo Feightner was the mayor of Huntington at the time of the trial of the cause in which the alleged crime was committed, or at the time he administered the oath to defendant. There is no showing in the affidavit that he, as the mayor of Huntington, acted in the capacity of city judge and exercised the powers of such official in the trial in question. The affidavit described Feightner as the duly elected and qualified judge of the city court of Huntington, but the proof upon the trial does not conform to or satisfy this description. On the contrary, the proof shows that Feightner was not at the time of the trial in question a de jure or a de facto judge of the city court of Huntington, for under the law that city neither had nor was entitled to have what is denominated under the statute "a city judge." The proof shows that Feightner was the mayor of the city, and acted under the law as judge, in holding the city or mayor's court, by reason of the fact that he was mayor of that city.
The rule is well settled that correct descriptions of the court before which the perjury is alleged to have been committed, and of the officer who administered the oath to the accused, are material and a matter of substance, and must be correctly set out in the affidavit or indictment in the particular case. The defendant in a perjury case has a right to be correctly informed by the indictment in respect to the officer before whom he took the oath alleged to have been false. Kerr v. People (1866), 42 Ill. 307.
It follows that a description of the court and of the person administering the oath...
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