176 Ind. 268 | Ind. | 1911
Appellant, the secretary-treasurer and general manager of the Winamac Bridge Company, was prosecuted for making out and filing with the auditor of Jasper county, and causing to be presented to the commissioners of said county for allowance, an alleged false and fraudulent claim, in violation of §2586 Burns 1908, Acts 1905, p. 584, §675. That part of said act applicable to this case is as follows: “Whoever, knowing the same to be false or fraudulent, makes out or presents for payment or certifies as correct to * * * the county auditor, or the board of commissioners or other officer of any county, * * * any claim, bill, note, bond, account, pay roll or other evidence of indebtedness, false or fraudulent, for the purpose of procuring the allowance of the same or an order for the payment
In the case of United States v. Shapleigh (1893), 54 Fed. 126, 128, 136, 4 C. C. A. 237, the court quoted from an instruction of the trial court, as follows: “A claim against the government is a ‘false’ one, within the meaning of the statute, if it is an untrue claim; for example, if a claim is made for labor or supplies said to have been furnished to the government, and the claim is made for more services than have been actually rendered, or for more supplies than have been furnished, such a claim is a false one within the meaning of the statute. ’ ’
In the case of State v. Williams, supra, the same question was presented to the court and carefully considered. In that case the allegation that the defendant ‘£ did then and there unlawfully, falsely, fraudulently and knowingly utter, publish and pass * * * as true and genuine a certain false, forged and counterfeit promissory note,” was held to be a sufficient allegation that the defendant knew the note was false, forged and counterfeit. See authorities given in the ease just cited. See, also, 22 Cyc. 328; 12 Am. and Eng. Ency. Law 522; United States v. Clark (1888), 37 Fed. 106; United States v. Nathan (1894), 61 Fed. 936; Rosen v. United States (1896), 161 U. S. 29, 31, 32, 16 Sup. Ct. 434, 40 L. Ed. 606; Price v. United States (1897), 165 U. S. 308, 17 Sup. Ct. 366, 41 L. Ed. 727.
But even if we test the affidavit' in this ease by the strict l’ule claimed by appellant, it is good, for later in the affidavit it is charged that the Winamac Bridge Company had “no just or lawful demand therefor against said county as he then and there well knew. ’ ’ This could mean nothing if it does not mean that appellant presented a claim with the knowledge, at the time he presented it, that it was false and fraudulent.
The next contention of appellant is that the affidavit is bad for uncertainty, in that it does not give either the substance or the exact copy of the claim referred to.
In 1 Bouvier’s LaAV Diet. (15th ed.) 320, a claim is defined as “the assertion of a liability to the party making it to do some service or pay a sum of money. ’ ’ A verification is defined by the same author as “the certificate that the writing is true.” 2 Bouvier’s Law Diet. (15th ed.) 781.
Black’s Law Dict. (2d ed.) 205 says: “A claim is a right or title, actual or supposed, to a debt, privilege, or other thing in the possession of another.” Verification is defined as a “confirmation of the correctness, truth, or authenticity of a pleading, account, or other paper, by an affidavit, oath, or deposition,” Black’s Law Diet. (2d ed.) 1203.
In 8 Words and Phrases 7296 it is said: “The term ‘verified,’ as applied to pleadings and statements of claims filed with municipal officers, has a settled meaning, and refers to an affidavit attached to such a statement of claim, as to the truth of the matters therein set forth.”
In the case of Patterson v. City of Brooklyn (1896), 6 App. Div. 127, 128, 40 N. Y. Supp. 581, the action related to a claim filed with the controller of the city of Brooklyn,
In the case of State v. Trook (1909), 172 Ind. 558, 560, the word ‘ ‘verify” is defined as follows: ‘‘The primary definition of the verb ‘verify,’ when used in matters of law, as given in the Standard Dictionary is: ‘To affirm under oath; confirm by formal oath; as, to verify pleadings in an action; to verify accounts, etc.’ ”
The language of our statute providing for the filing and allowing of claims against counties (§§6002, 6008 Burns 1908, §5758 R. S. 1881, Acts 1897 p. 187, §4) would imply that the claim and the verification are separate instruments.
It has been held that the certificate of acknowledgment attached to a deed or a mortgage forms no part thereof, but is a separate instrument (Sturgeon v. Board, etc. [1879], 65 Ind. 302; State v. Dufour [1878], 63 Ind. 567); that an indorsement is no part of a check or note, and need not be set out in the indictment or information for uttering a forged or counterfeit check or note, and that there is no variance between the indictment and the evidence, if an indorsed check or note is given in evidence (Miller v. People [1873], 52 N. Y. 304, 11 Am. Rep. 706; Hess v. State [1831], 5 Ohio *5, 23 Am. Dec. 767; Perkins v. Commonwealth [1851], 7 Gratt. 651, 56 Am. Dec. 123). It is also held in relation to pleadings required by law to be verified, that the verification is not a part of the pleading, and that such a pleading unverified is good as against a demurrer. Vail v. Rinehart (1886), 105 Ind. 6, 11; Toledo Agricultural Works v. Work (1880), 70 Ind. 253, 255; M’Cormick v. Maxwell (1836), 4 Blackf. 168; Hagar v. Mounts (1832), 3 Blackf. 57; Hagar v. Mounts (1833), 3 Blackf. 261.
We hold, therefore, that the verification is not a part of
As there was evidence that the specifications and the blue print were a part of the contract, they were properly admitted in evidence.
Appellant insists that this testimony was a mere conclusion, but he cites no authorities to sustain this contention. The witness was an expert engineer, and it was proper to permit him to give his opinion, or the result of his calculations, on facts involving special skill in his profession, from which the jury unaided could not be supposed to draw proper conclusions. 17 Cyc. 67; Moelering v. Smith (1893), 7 Ind. App. 451, 456.
In the cast last cited, an engineer was permitted to testify to the amount of stone in a wall, basing his calculations upon the dimensions given by another engineer. In discussing the propriety of admitting said testimony the court said: “If the jury were competent to make the calculations, the figures of Shea and Fowler [the engineers] could do no harm, for the jury could verify them and decide for itself as to their correctness. * * * The calculations would involve considerable time, labor and the exercise of some skill in the rules of mensuration, and it was not improper to permit
It is evident, upon the rule laid down in the case just cited, that it was proper for the witness in this case to testify as to the weight of the material called for by the specifications and the weight of the material used. If it is error to allow him to make the subtractions, the error would be harmless, as the jury could easily verify this part of the calculation.
The value of the bridge as constructed was not relevant to the issues in the case, and evidence offered by appellant to show said value was properly excluded, for the reason that even if the bridge as constructed was worth the contract price or more, that would not be a defense.
Said cases hold that an instruction is not erroneous which informs the jury that if it is satisfied beyond a reasonable doubt of a defendant’s guilt, “then his previous good character would not avail him as a defense or entitle him to an acquittal.”
This is substantially the same as the instruction complained of in this ease. Even if previous good character might avail in mitigating a defendant’s punishment — a question we need not and do not decide — the instruction com
Moreover, under the law in force at the time of the trial, the jury was not authorized to assess any punishment, but only to find by the verdict whether appellant was guilty or innocent. Under such circumstances, even if the word “mitigates” in said instruction was erroneous, it was harmless.
The objections to the instruction are that it omitted the element of knowledge on the part of appellant that the claim was false and fraudulent, and that the court erroneously used the word “should” instead of “might.”
Said instruction makes appellant’s knowledge of the falsity of the claim, and that the claim was filed for the purpose of defrauding Jasper county, essential elements of the offense, and it is not therefore open to the first objection urged. The use of the word “should” was not erroneous. Walker v. State (1894), 136 Ind. 663, 670, 671; Deal v. State (1895), 140 Ind. 354, 364, 368-370; Southern R. Co. v. State (1905), 165 Ind. 613, 622, 623, and cases cited; Fifer v. Ritter (1902), 159 Ind. 8, 11, 12; Strebin v. Lavengood (1904), 163 Ind. 478, 493, 494.
Having determined all the questions presented by the statement of points, and not waived, and finding no available error, the judgment is affirmed.