Woodsmall v. State

• Decision Date: 19 June 1913
• Docket Number: 22,349
• Citation: 102 N.E. 130,179 Ind. 697
• Parties: Woodsmall v. State of Indiana
• Court: Indiana Supreme Court

102 N.E. 130

179 Ind. 697

Woodsmall v. State of Indiana

No. 22,349

Supreme Court of Indiana

June 19, 1913

From Sullivan Circuit Court; William H. Bridwell, Judge.

Prosecution by the State of Indiana against Samuel W. Woodsmall.From a judgment of conviction, the defendant appeals.

Reversed.

Charles D. Hunt and Gilbert W. Gambill, for appellant.

Thomas M. Honan, Attorney-General, and Thomas H. Branaman, for the State.

OPINION

Morris, J.

Appellant with others, was indicted for conspiracy to commit the crime of obtaining money by false pretense, as defined by §§ 2588,2647 Burns 1908, Acts 1907p. 431, Acts 1905p. 584, § 641.On a plea of not guilty, he was tried by a jury and convicted.He filed a motion in arrest of judgment, in which he averred that the facts stated in the indictment do not constitute a public offense.Subd. 2 § 2159 Burns 1908, Acts 1905p. 584, § 283.The only question presented here is predicated on the action of the trial court, in overruling this motion.

So much of the indictment, as is pertinent to this controversy, reads as follows: "Samuel W. Woodsmall, Emanuel Purcell, and Charles C. Riggs, * * * did * * * unite, combine, conspire confederate and agree to and with each other for the object and purpose and with the unlawful and felonious intent to then and there feloniously, unlawfully, knowingly and falsely pretend to one, Luella Mills, with intent then and there and by such false pretense to cheat and defraud the said Luella Mills for the purpose of obtaining from the said Luella Mills Two Hundred ($ 200.00) Dollars in money, which money then and there belonged to the said Luella Mills; that the said defendants, Samuel W. Woodsmall, Emanuel Purcell, and Charles C. Riggs, falsely and fraudulently represented to Luella Mills that there was a detective in the town of Shelburn, Sullivan County, Indiana, and that the said detective was going to arrest the said Luella Mills' son, James Little, and the said defendant, Charles C. Riggs, for the burning of the said James Little's restaurant on the 15th day of January, 1912, and that the said defendants falsely and designedly further represented to the said Luella Mills, with the intent to defraud, that if she would pay Two Hundred ($ 200.00) Dollars in money to the defendant, Samuel W. Woodsmall, he would pay it to the detective and prevent the arrests and exposure; relying upon the said representations of the said defendants, Samuel W. Woodsmall, Emanuel Purcell and Charles C. Riggs, and their false pretense, as aforesaid, and believing the same to be true and being thereby deceived and having no means of ascertaining the contrary, did then and there and by reason of said reliance and belief, upon the said day, pay to the defendantsSamuel W. Woodsmall, Emanuel Purcell and Charles C. Riggs, Two Hundred ($ 200.00) Dollars in money and the said defendants, Samuel W. Woodsmall, Emanuel Purcell and Charles C. Riggs, did then and there and thereby receive and obtain possession by means of their false pretense, as aforesaid, the said Two Hundred ($ 200.00) Dollars in money, the property of the said Luella Mills, to the injury of the said Luella Mills, contrary to the form of statute in such cases made and provided, and against the peace and dignity of the State of Indiana".Appellant contends that the indictment is fatally defective because it fails to negative the alleged pretense.

While an indictment is not subject to the same test by motion in arrest, as it is by motion to quash, yet, by the terms of § 2159, supra, it must, on motion in arrest state facts sufficient to constitute a public offense.A material fact, constituting the offense, if stated in defective manner or form, may on motion to quash, render the indictment insufficient, while such defect, on motion in...