Wilkoff v. State, 26049.

• Decision Date: 18 May 1933
• Docket Number: No. 26049.,26049.
• Citation: 206 Ind. 142,185 N.E. 642
• Parties: WILKOFF v. STATE.
• Court: Indiana Supreme Court

206 Ind. 142

185 N.E. 642

WILKOFF

v.STATE.

No. 26049.

Supreme Court of Indiana.

May 18, 1933.

Appeal from Elkhart Circuit Court; Lloyd L. Burris, Judge.

Fred Wilkoff was convicted of presenting a false claim against an insurance company with intent to deceive, and he appeals.

Affirmed.

Oscar Jay and Hawley O. Burke, both of Elkhart, for appellant.

James M. Ogden, Atty. Gen., and Robert L. Bailey, Sp. Asst. Atty. Gen., for the State.

FANSLER, Judge.

The appellant was tried upon an affidavit in two counts. The first count charged violation of section 2881, Burns' Revised Statutes 1926. The second count charged conspiracy to violate the same section. There was a verdict and judgment of guilty of the offense charged in the first count. The first count of the affidavit, omitting the caption and the documents set out therein, is as follows:

“John M. Weaver, swears that on or about the 1st day of April, 1930, and on divers other days during a period of five months prior thereto, at the County of Elkhart and State of Indiana, one Fred Wilkoff, Phelan Wolf, Martin Kramer, alias Martin Tesmer, John Moleski, Meyer Bogue, alias Meyer Borg, alias Meyer Fox, Fred Poncher, Abraham Poncher, John Doe, true name unknown, and Richard Roe, true name unknown, did then and there knowingly, unlawfully and fraudulently prepare, make, and subscribe certain false affidavits, proofs of loss, papers and writings, which are in the words and figures as follows, to-wit: with the intent to present and use the same, and allow the same to be presented to the Southern Surety Company of New York, a corporation transacting insurance and indemnity business, and to be used in support of a claim and claims for an alleged loss of Fred Wilkoff and Phelan Wolf, doing business as Wright's, against the said surety company, and said defendants did then and there knowingly, unlawfully and fraudulently present and cause to be presented to the Southern Surety Company of New York and to Rollo S. Stryker as an authorized agent of said surety company, at the City of Elkhart, said County of Elkhart, and State of Indiana, said false affidavits, proofs of loss, papers and writings in support of said false and fraudulent claims against the said Southern Surety Company of New York for the payment to Fred Wilkoff and Phalen Wolf, doing business as Wright's, of a certain pretended loss by robbery, by the said Southern Surety Company of New York, wherein and whereby the said Fred Wilkoff and Phelan Wolf, doing business as Wright's, did claim of the said surety company and did endeavor to compel said surety company to pay them the sum of $334.65 and the sum of $10,583.02, lawful money of the United States, on account of a certain contract of insurance against robbery theretofore executed the said Southern Surety Company of New York in favor of the said Fred Wilkoff and Phalen Wolf, doing business as Wright's, the same being Policy Number CR-702-501148, for a certain pretended loss of money and personal property belonging to the said Fred Wilkoff and Phelan Wolf, doing business as Wright's, alleged to have been stolen by robbers in a hold-up and robbery at about eight o'clock A. M. on the 27th day of January, 1930; while in truth and in fact said money and property were not stolen in said alleged robbery as set forth in said proofs of loss, claims, papers, writings, and false affidavits, but were in truth and in fact secreted and converted to the use of the defendants for the purpose and with the object of defrauding said surety company, all with the unlawful intent then and there and thereby to swindle and defraud said insurance company, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Indiana.”

The sufficiency of this count of the affidavit to state an offense under the statute is questioned by a motion to quash and a motion in arrest of judgment.

The appellant says in his brief: “If the claim was not presented or caused to be presented by appellant, or if the claim presented was not false or fraudulent, or if the party against whom the claim was presented was not a corporation or association, or if the claim was presented to a corporation or association that was not transacting insurance or indemnity business of any kind, or if the claim was presented outside the boundaries of this state, or if the money sought to be obtained belonged to appellant, there was no offense under this statute. Each and every one of these six situations might exist in spite of every positive and direct allegation of this affidavit.” We cannot agree.

It was said by this court in the case of Allen et al. v. State of Indiana, 183 Ind. 37, 107 N. E. 471, 474: “The certainty in alleging an element in a criminal charge need not be greater than in a civil action. The allegations need only be certain to a common intent. We are under no obligations to place on the affidavit before us a construction of uncertainty in the particular under consideration, induced by what has aptly been termed ‘the inability of the seventeenth century common law to understand or accept a pleading that did not exclude every misinterpretation capable of occurring to intelligence fired with a desire to pervert.’ Paraiso v. United States (1907) 207 U. S. 368, 28 S. Ct. 127, 52 L. Ed. 249.”

The affidavit, including as it does the documents which were alleged to have been prepared and presented, is susceptible of only one construction. It sufficiently charges the offense. Musgrave v. State, 133 Ind. 297, 32 N. E. 885.

It is also contended that the statute is unconstitutional and void because in violation of section 1, art. 14, of the Amendments to the Constitution of the United States, and of section 23, art. 1, of the Constitution of Indiana, “in that it extends a protection to corporations, associations and societies transacting insurance and indemnity business that is with-held from and denied individuals, firms and co-partnerships similarly situate and engaged in the same business.”

The United States Supreme Court, in passing upon a statute of the state of New York which made it a felony to receive metals belonging to a railroad company or other public utility in a case where the same constitutional question raised here was presented,...