Williams v. State

• Citation: 123 N.E. 209,188 Ind. 283
• Decision Date: 09 May 1919
• Docket Number: No. 23190.,23190.
• Parties: WILLIAMS v. STATE.
• Court: Supreme Court of Indiana

188 Ind. 283

123 N.E. 209

WILLIAMS

v.STATE.

No. 23190.

Supreme Court of Indiana.

May 9, 1919.

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

Gene Williams was convicted on a separate trial of a felonious conspiracy to solicit bribes and sentenced to pay a fine and to imprisonment, and he appeals. Reversed, with instructions to grant a new trial, to overrule a demurrer to a paragraph of a plea in abatement, and for further proceedings.Geo. W. Cromer and Harry Long, both of Muncie, for appellant.

U. S. Lesh, of Huntington, Elmer E. Hastings, of Washington, Ind., Edward M. White, of Indianapolis, John G. McCord, of Pinevillage, Wilbur Ryman and Horace G. Murphy, both of Muncie, and Ele Stansbury, of Indianapolis, for the State.

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 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 2 to 14 years in the state reformatory. From this judgment he appeals and assigns as error: (1) The overruling of his motion to quash the indictment.

[1] This indictment is predicated on sections 2647 and 2378, Burns 1914. 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 of which appellant is alleged to have conspired to commit is defined by section 2378, and as applicable to this case is as follows:

“Whoever, being *** intrusted 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, 183 Ind. 37, 45, 107 N. E. 471;Green v. State, 157 Ind. 101, 60 N. E. 941;Barnhart v. State, 154 Ind. 177, 56 N. E. 212;Smith v. State, 93 Ind. 67;Woodsmall v. State, 179 Ind. 697, 102 N. E. 130.

[2][3] Our Criminal Code, section 2065, Burns 1914, 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 provide 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 section 2063, Burns 1914, c1. 10, 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, section 2062, Burns 1914, cl. 5, 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 20 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, Ind.; 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 25 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 25 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 20 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 employés 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 co-conspirators 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, it must be conceded that, unless such defects appear upon the face of the indictment, they are not raised by a motion to quash, or if they do appear, and the...