Williams v. State

• Citation: 123 N.E. 209,188 Ind. 283
• Decision Date: 09 May 1919
• Docket Number: 23,190
• Parties: Williams v. State of Indiana
• Court: Supreme Court of Indiana

123 N.E. 209

188 Ind. 283

Williams v. State of Indiana

No. 23,190

Supreme Court of Indiana

May 9, 1919

Appeal from the Delaware Circuit Court; Fred C. Gause, Special Judge.

Prosecution by the State of Indiana against Gene Williams. From a judgment of conviction, the defendant appeals.

Reversed.

George W. Cromer and Harry Long, for the appellant.

Ele Stansbury, Attorney-General, U. S. Lesh, Edward M. White Elmer E. Hastings, John G. McCord, Horace G. Murphy, and Wilbur Ryman, for the state.

OPINION

Myers, J.

This is a prosecution by the state against the appellant and six other persons upon a joint indictment charging them with a felonious conspiracy to solicit bribes. The indictment is in one count. Defendants, after severally and unsuccessfully moving to quash the indictment, filed a plea in abatement in ten paragraphs, to which a demurrer to the first nine paragraphs was sustained, and the tenth paragraph on motion, was stricken out. Appellant's separate and several motion for an order requiring the state to file a bill of particulars was overruled. Appellant then waived arraignment and entered his plea of not guilty. His request for a separate trial was granted; trial was had by jury resulting in a verdict of guilty. Thereafter various motions were each overruled. Judgment followed, assessing his fine at $ 200 and costs, and imprisonment from two to fourteen years in the state reformatory. From this judgment he appeals and assigns as error: (1) The overruling of his motion to quash the indictment. This indictment is predicated on §§ 2647, 2378 Burns 1914, §§ 641, 477, Acts 1905 p. 584. Section 2647 reads 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 nor more than five thousand dollars, and imprisoned in the state prison not less than two years nor more than fourteen years."

The felony which appellant is alleged to have conspired to commit is defined by § 2378, supra, and as applicable to this case is as follows: "Whoever, being * * * entrusted with the administration of justice or prosecuting attorney, either before or after his election, qualification, appointment or employment, solicits or accepts any such money, promise or valuable thing, to influence him with respect to his official duty, or to influence his action, vote, opinion or judgment in any matter pending or that might legally come before him, shall, on conviction, be imprisoned in the state prison not less than two years nor more than fourteen years, fined not exceeding ten thousand dollars, and disfranchised and rendered incapable of holding any office of trust or profit for any determinate period."

This court has consistently held that an indictment, as here in question to be good as against a motion to quash, must not only state facts showing the conspiracy, but also charge the felony with the same particularity as though the accused was to be tried for the felony alone. Allen v. State (1914), 183 Ind. 37, 45, 107 N.E. 471; Green v. State (1901), 157 Ind. 101, 60 N.E. 941; Barnhart v. State (1899), 154 Ind. 177, 56 N.E. 212; Smith v. State (1884), 93 Ind. 67; Woodsmall v. State (1913), 179 Ind. 697, 102 N.E. 130.

Our Criminal Code, § 2065 Burns 1914, § 194, Acts 1905 p. 584, specifies the grounds or reasons proper to be assigned in support of a motion to quash an indictment or affidavit, and the specific objections pointed out by appellant are all covered by clauses 2 and 4 of that section, which provides that an indictment or affidavit must be held good unless upon its face it appears that the facts stated therein do not constitute a public offense, or that it does not state the offense with sufficient certainty. Along with these provisions, we must keep in mind § 2063, cl. 10, Burns 1914, § 192, Acts 1905 p. 584, which provides that no indictment shall be deemed invalid or quashed for any "defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits." Also, § 2062, cl. 5, Burns 1914, § 192, Acts 1905 p. 584, that an indictment will be deemed sufficient if "the offense charged is stated with such a degree of certainty that the court may pronounce judgment upon a conviction according to the right of the case."

The indictment before us covers twenty typewritten pages of the record, and in our opinion no good purpose will be subserved by copying it into this opinion. In substance, it charges that appellant, on May 1, 1914, was the duly appointed and acting deputy prosecuting attorney for Delaware county, and as such deputy had charge of all criminal prosecutions before justices of the peace, and the city court in the city of Muncie, Indiana; that said city is a city of the third class; that on and prior to May 1, 1914, there were in the city of Muncie more than twenty-five houses of ill fame resorted to for the unlawful purpose of prostitution and lewdness by persons, male and female, who were then and there of bad reputation for chastity and virtue; that there were more than twenty-five persons then and there in charge of, or keeping certain rooms in the city, then and there unlawfully used for the purpose of gambling and where gaming was permitted to be carried on; that there were then and there more than 100 places kept and operated by persons for the unlawful sale of intoxicating liquors; that more than 100 gaming and gambling devices of various kinds were then and there in unlawful operation in various places, and which were then and there unlawfully running and operated for the purpose of gaming and betting; that more than twenty houses of assignation were then and there unlawfully being run and operated by various persons in said city. That at the time the alleged offense is charged to have been committed, each and all of the persons jointly indicted with appellant were the duly elected or appointed, qualified and acting officers of said city, and the offices so held by them were those of mayor, city police commissioners, chief of police and a city patrolman, that appellant and the other persons named in the indictment did then and there unite, combine, conspire and confederate with each other and in their official capacity to feloniously and corruptly ask, solicit and demand in person and by other persons, agents and employes who might be hired to act for them and each of them, money and other things of value as a bribe or bribes from each and all of the persons so engaged in the various classes of business heretofore named, or who might thereafter engage in such business or businesses, and, in consideration for the money or other things of value paid or contributed by such persons, they were, by such officers, to be shielded and protected from prosecution and permitted to run and operate their various kinds of business without molestation so long as they should or would pay a certain sum of money weekly to appellant or his coconspirators indicted with him; that, pursuant to said unlawful and felonious combination and conspiracy and in furtherance thereof, they and each of said conspirators personally and through others as go-betweens did solicit from the various persons so engaged in the various classes of business aforesaid, money and other things of value as bribes, and as a pecuniary reward for protection and freedom from arrest and raids on their places of business; that they (persons named in the indictment) did then and there feloniously as such officers receive bribes and pecuniary rewards of and from persons running and operating said various illegal business and immoral places, a large sum of money, to wit: $ 10,000, for the purpose of influencing each and all of them with respect to his and their official action in any matter pending, or that might legally come before him or them; that thereafter the said persons as such officers did unlawfully, feloniously and corruptly refuse, and would not prosecute, or cause to be prosecuted, any of the parties so as aforesaid paying them said bribe and bribes, but did then and there protect and defend them, and save them and their places from raids, and the said parties from arrest and punishment for the said numerous violations of the law; that the names of the persons from whom money and other things of value were to be solicited, or who were solicited and who contributed such bribes and rewards, were to the grand jury unknown.

Appellant insists that the facts stated in this indictment are not sufficient to constitute a public offense for the reasons: (1) That it fails to show knowledge on his part of any crime which he was to conceal, or in favor of which his official acts were to be performed; (2) that it fails to disclose the name or names of the person or persons who were to be allowed to commit the crimes or crime named therein, or the places where the alleged crimes were to be committed which were to be concealed by any of the defendants; (3) that there is no crime known to the law as a conspiracy to solicit bribes, and (4) that it fails to allege the ownership of the money, or other things of value to be solicited from the various unknown persons referred to therein.

Directing our attention to the alleged defects in the indictment relied on by appellant, and applying the various statutory provisions to which attention is called, supra, it must be conceded that, unless such defects appear upon the face of the...