Wilson v. State

• Court: Indiana Supreme Court
• Writing for the Court: Monks, J.
• Citation: Wilson v. State, 156 Ind. 631, 59 N.E. 380 (Ind. 1901)
• Decision Date: 14 February 1901
• Docket Number: 19,451
• Parties: Wilson v. The State

59 N.E. 380

156 Ind. 631

Wilson v. The State

No. 19,451

Supreme Court of Indiana

February 14, 1901

Rehearing Denied June 28, 1901, Reported at: 156 Ind. 631 at 636.

From the Shelby Circuit Court.

Affirmed.

T. R Marshall, T. B. Adams, E. E. Stroup, A. F. Wray and T. H Campbell, for appellant.

W. L. Taylor, Attorney-General, Merrill Moores and C. C. Hadley, for State.

OPINION

Monks, J.

Appellant was indicted, tried, and convicted for a violation of § 2353 Burns 1894, § 2205 R. S. 1881 and Horner 1897. The errors assigned call in question the action of the court in overruling the motion to quash the indictment, the motion for a new trial, and the motion in arrest.

The indictment, omitting the formal parts, charges in substance that appellant did unlawfully, feloniously, and designedly, and with intent to cheat and defraud said Shelby county, make out and file in the auditor's office of said county, and cause the same to be entered on the claim docket, in said office, and present to the board of commissioners of said Shelby county, a certain false and fraudulent claim against such county, in which said claim it was alleged that Shelby county, Indiana, was indebted to Campbell, Wild & Co., in the sum of $ 1,600 for services rendered by said Campbell, Wild & Co., for said Shelby county, as financial agent of said county for the year 1899, in securing a loan of $ 80,000 at two per cent., and with said claim and as a part thereof there was an affidavit alleging that said claim was justly owing by said Shelby county, and that the same or any part thereof had never been allowed; that said affidavit was subscribed and sworn to by said J. Marsh Wilson before Henry Oltman, auditor of said county, on the 12th day of December, 1899; that said false and fraudulent claim has been destroyed, or is in the possession of some one to the grand jury unknown; the said false and fraudulent claim being so made out and presented to such board of commissioners, in manner as above, for the purpose of then and there and thereby procuring an order on such county for said sum of $ 1,600, for the payment thereof, out of the county treasury of such county, the said J. Marsh Wilson then and there well knowing that such claim was false and fraudulent, and then and there well knowing that said county was not indebted in any sum whatever to said Campbell, Wild & Co. for services rendered by said company to said Shelby county.

The part of said § 2353 (2205), supra, upon which said indictment is predicated is as follows: "Whoever, knowing the same to be false or fraudulent, * * * presents for payment, or certifies as correct to the * * * board of commissioners * * * any claim, bill, * * * account, * * * or other evidence of indebtedness, false or fraudulent, for the purpose of procuring the allowance of the same, or an order for the payment thereof out of the treasury of said * * * county, * * * shall be imprisoned in the state prison not more than fourteen years nor less than two years, and fined not more than $ 1,000 nor less than $ 10."

It is insisted by appellant that the allegation that he made out and presented said claim to the board of commissioners of Shelby county, for the purpose of procuring an order for its payment out of the county treasury, is insufficient, for the reason that boards of commissioners are only authorized to allow claims against the county, and not to issue orders for payment out of the county treasury. While it is true that boards of commissioners are only authorized to allow claims against the county, and not to issue orders, yet no order on the treasury of said county for the payment of the claim described in the indictment could have been issued by the auditor of said county for the payment thereof, until after the same had been allowed by the said board of commissioners. The making out, and verification of said claim, and the filing thereof in the auditor's office, and presenting the same to the board of commissioners, were steps necessary to procuring an order for the payment thereof out of the county treasury. §§ 7845a, 7848a Burns Supp. 1897; Acts 1897, p. 187, §§ 3, 4.

The purpose of presenting said claim to the board of commissioners was not only to procure an allowance thereof by said board, but also to procure an order for its payment out of the county treasury. Either purpose, or both, if alleged in an indictment, in connection with the other necessary averments would show a violation of the provisions of said section. Gillett's Crim. Law (2nd ed.), p. 258. It is true that the commissioners do not issue the order, but their allowance, as we have said before, was an essential step in procuring the order, and without which it could not be procured. It is not alleged that the claim was presented to the board of commissioners to procure them to issue the order, nor will the indictment when read in the light of the law in regard to the power of the board of commissioners bear any such construction.

Appellant urges that as there is no law requiring the county auditor to keep a claim docket in his office, that the indictment is insufficient, because it does not allege that such a docket was kept in the office of the auditor of Shelby county. Section 7848a Burns Supp. 1897 (Acts 1897, p. 188, § 4), provides that "No claim shall be allowed by the board of commissioners of any county in this State unless such claims, duly itemized and verified by the claimant or some one in his behalf, shall have been filed in the auditor's office of the proper county, and by him placed on the claim docket", etc. This objection is clearly without merit.

The next objection urged by appellant is that the indictment is bad for duplicity in charging that appellant "presented a false and fraudulent claim against such county"; that it is a crime to present a false claim, and also a crime to present a fraudulent claim, and both are charged. It will be observed that the...