157 Ind. 190 | Ind. | 1901
Appellant was tried before a jury-and convicted in the Marion Criminal Court on an affidavit and information which charged that he had attempted on November 5, 1900, to bribe one J. Wesley Bridges, who had been designated as an election judge to serve as such in precinct sixteen in the city of Indianapolis, at the general election to be held on the 6th day of November, 1900. His motion for a new trial was overruled, and upon the verdict of the jury the court sentenced him to be imprisoned in the Indiana state prison for an indeterminate period of time of from two to fourteen years, and adjudged that he be fined in the sum of $1, and disfranchised, etc. From this judgment he has appealed, and bases the errors of which he complains upon the rulings of the trial court, (1) in denying his motion to quash the affidavit and information, (2) in overruling his motion in arrest of judgment, and (3) in overruling his motion for a new trial. The information in its averments is the same as the affidavit, and, omitting the formal parts, is as follows: “John C. Euckelshaus, prosecuting attorney of the nineteenth judicial circuit, who prosecutes the pleas of the State within and for the county of Marion, and State of Indiana, now informs the court that John Banks, on the 5th day of November, A. D. 1900, at and in the county of Marion, and State of Indiana, did then and there unlawfully, feloniously, and corruptly offer to one J. Wesley Bridges, who was then and there, and who had theretofore been designated as one of the election board of the sixteenth precinct of the first ward in the city of Indianapolis, in Marion county, and State of Indiana, to wit, one of the judges of said election board, at and for the general election to be then and there held for the election of State, county, and township officers at the general election to be held on the 6th day of November, A. D. 1900, with intent then and there to corrupt and influence him, the said J. Wesley Bridges, with respect to the discharge of his duties as such judge of said election board, he, the
Tbe prosecution is based on §105 of tbe criminal code, tbe same being §2097 Burns 1894, §2010 E. S. 1881 and Horner 1897, which reads as follows: “Whoever, with intent to corrupt a grand or petit juror, or a grand or petit jury, referee, master commissioner, arbitrator, umpire, commissioner to sell lands or make partition of lands, appraiser of real or personal property, county commissioner, mayor of a city, or member of a common council of any city, or trustee of any incorporated town, trustee of any civil or school township, or any inspector, judge, or clerk of election; or, to influence him or them with respect to tbe discharge of bis or their duty, either before or after be or they are summoned, elected, appointed, qualified or sworn, promises or offers him or them any money or valuable thing * * * shall be imprisoned in tbe State prison,” etc.
Counsel for appellant contend that tbe affidavit and information are fatally defective and insufficient for tbe reason, among others, that they do not disclose under whose or by what authority Bridges bad been designated for tbe appointment of election judge to serve as such at said general election at tbe precinct mentioned in tbe information. By §4688 Horner 1897, §6200 Burns Supp. 1897, it is made tbe duty of an inspector of elections in bis respective precinct, prior to tbe opening of tbe polls, to appoint two qualified electors of such precinct as judges of tbe election to be beld therein. Tbe section provides that such electors in order to be qualified to serve as judges in their precincts must have been “freeholders and resident householders therein for at least one year, or householders for at least two years next preceding such election, and who are members of differ
If it is essential, where the offense is committed after the appointment or election of the particular officer, that knowledge of his official character at the time of its alleged commission should be imputed to the defendant, it is certainly material and important that where the crime is charged to have been committed before the appointment or election of the person to the position in controversy, that knowledge of the fact that he had been nominated or designated by competent authority should be imputed to the defendant at the time of the alleged commission of the offense. For as previously said it ought to be made to appear that the accused had reasonable grounds to believe or contemplate that there was at least a probability of the person whom he bribed, or
The rule in regard to criminal pleading requires that the offense be positively charged, and not made to appear by the way of recitals or inferences. Nothing is to be gained by courts permitting a departure from well settled principles and lending their sanction to a loose and uncertain mode of pleading in criminal cases.
In Funk v. State, 149 Ind. 338, we said: “The doctrine so frequently asserted and adhered to by this court is that the particular crime with which the accused is charged must be preferred with such reasonable certainty by the essential averments in the pleading as will enable the court and jury to distinctly understand what is to be tried and determined, and fully inform the defendant of the particular charge which he is required to meet. The averments must be so clear and distinct that there may be no difficulty in determining what evidence is admissible thereunder.” We conclude, therefore, for the reasons urged and stated herein, that the information is fatally defective. As to whether it is sufficient in other respects we do not decide. It follows that the court erred in overruling appellant’s motion to quash the affidavit and information.
It is further contended that the court erred in excluding certain evidence offered in behalf of appellant. The latter,
Mayor Taggart, who was called as a witness in behalf of appellant, testified that on Monday, October 29, 1900, appellant came to him and talked to him about what had previously occurred between him and Bridges, and in that conversation the witness stated that he informed or advised appellant what to do in respect to ascertaining if Bridges had a ballot. Thereupon the witness was asked to state what was said by him to appellant in that conversation on that subject. The State interposed an objection, and counsel for appellant stated to the court what he expected to show and proposed to prove by the witness in response to the question as follows: “Mr. McCullough: I expect the witness to answer that in that conversation he said to Banks, in substance, ‘Keep your ears open, and listen to that man and find out if he has got a ballot. If he has got a ballot, we will go after him and the ballot both very quick, and if necessary to have money for the purpose of having him disclose the ballot, I will furnish the money. I will see that he is taken with the ballot in his possession if he has one. He has no business with a ballot. You must not receive the ballot from him, but ascertain if he has one.’ ” The court sustained the State’s obj eetion, and excluded the evidence offered, to which ruling appellant at the time excepted, and this ruling is also assigned as one of the reasons for a new trial.
It was the right of appellant to have the jury fully informed in regard to all of the facts and circumstances pertinent to the arrangement or scheme under and in pursuance of which he claimed to have acted in offering the money in question to Bridges. Such evidence would not only include what he himself did in respect to the matter, but, under the circumstances, it would embrace what Taggart told him or advised him to do after appellant had reported to him, as he stated he did, in reference to and in the furtherance of the arrangement or scheme by which Bridges was to be exposed and then arrested. As said, this was the scheme or arrangement under and in pursuance of which, as claimed by appellant, he thereafter acted in offering or promising the money
It was not the right of the court under the circumstances in this case to confine appellant to the mere statement that he had received directions or advice from Mayor'Taggart in regard to the matter between him and Bridges, but he was entitled to show what Taggart said to him or in his presence in giving him the directions or advice in respect to what he should do when he met with Bridges upon the occasion in question. The facts which appellant offered to prove, but which were excluded by the court, were germane to the question involved. What was said by appellant and Taggart in making the arrangement in regard to the matter and in the furtherance thereof was a part of the res gestae, and such statements or declarations, under the circumstances, were proper to go to the jury to show the character of the transaction in all of its aspects. It is the right of a party in either a civil or criminal prosecution to endeavor to' maintain his theory of the case, and for that purpose he should be permitted to give to the jury any and all competent evidence which tends to support the same; and where any evidence
It was incumbent upon the State, among other things, to sustain beyond a reasonable doubt the intent with which appellant was charged to have offered the money to Bridges. It was consequently the right of appellant to endeavor to explain or rebut' such intent upon any reasonable theory or claim, and the action of the court in excluding from the jury the evidence in dispute falls clearly within the rule asserted and enforced in Grimes v. State, 68 Ind. 193, and Norris v. State, 95 Ind. 73. In the first case last cited the defendant was indicted for larceny and the evidence established that he had borrowed the chattel alleged to have been stolen to take it to a certain place; that he had then gone to a different place and there sold the chattel and used the proceeds. It was held by the court in that case that it was competent for the defendant to prove, as bearing on his intent in borrowing the chattel, that he had previously arranged to go with another to such first mentioned place, and that he did not go there because of the fact that such other person was prevented by sickness from going with him. In the last case, Norris v. State, supra, the defendant was indicted for the crime of blackmailing, by sending a threatening letter to another to extort money. The theory of the defense was that the letter was sent as a joke, and there was an offer to prove that shortly before defendant sent the letter to the party in question that the latter had perpetrated several severe jokes upon him. His offer to prove these facts was denied, and on appeal this court held that the evidence was admissible upon the question of intent.
It must follow, from what we have said, that the trial