— Appellant Tyler Cruthers, jointly with one Horace W. Carey, was charged by affidavit and information with aiding and abetting, at the county of Hamilton, State -of Indiana, the commission of the offense of bunko-steering in the state of Illinois, under §§1645, 2178 Burns 1901. lie was tried separate and apart from his codefendant Carey, and after hearing the evidence and receiving the instructions of the court, the jury returned a verdict -as follows: “We the jury find the defendant guilty of bunko-steering as charged in the affidavit and information, and that his true age is twenty-eight years. Ellis Roberts, foreman.” Over appellant’s motions for a new trial, in arrest of judgment, and to be discharged upon the ground that the .verdict of the jury was not a finding that he was guilty of the crime charged in the affidavit and information, the court adjudged and decreed that said de
The errors upon which appellant relies for a reversal are: (1) That the trial court had no jurisdiction over the subject-matter of the charge; (2) that the court erred in overruling the motion to quash the count numbered three and one-half of the information; (3) that the court erred in overruling the motion for a new trial; (4) in overruling the motion in arrest of judgment; and (5) in overruling the motion for the discharge of appellant upon the ground that the verdict of the jury was an acquittal of the crime qharged.
The count of the information upon which appellant was tried and convicted is quite lengthy, and to set it out in full would unnecessarily extend this opinion. It is open to the objection that, in part at least, it contains what may be termed a recital of evidence instead of a direct averment of facts. We have endeavored to summarize the pleading as follows: Appellant, with his codefendant, one Horace W. Carey, each of whom is alleged to have been a resident and citizen of Hamilton county, Indiana, is charged with having, on the 28th day of April, 1902, in Hamilton county, Indiana, unlawfully and feloniously aided in and abetted an offense in the state of Illinois, which offense so aided and abetted by the said defendants was at said time a felony under the laws of the State of Indiana. The act or acts of such aiding and abetting by the defendants are alleged to have consisted in this: On or about the aforesaid day in April the defendants, at said
Section 1645 Burns 1901, §1576 Horner 1901, reads as follows: “Every person who shall, while in this ■ State, aid in and abet the' perpetration, or attempt to perpetrate, an offense in another state which by the laws of this State is a felony, shall be deemed guilty of a felony; and upon conviction thereof shall be punished in the same manner and to the same extent as accessories before the fact to the commission of such a felony are prosecuted and punished by the criminal laws of the State; and it shall not be essential to the conviction of such person 6f said felony that the principal be prosecuted for the crime charged.” Section 2178 Burns 1901, §2083 Horner 1901, which defines the crime of bunko-steering, provides as follows: “Whoever allures, entices or persuades another to any place upon any pretense, and then by duress or fraud compels such person to win, or lose, or advance, or loan money, or execute or give his note or other obligation, either for money or anything of value, or to part with anything of value upon any game or wager, or by means of any trick, device or artifice, is guilty of bünko-steering, and upon conviction thereof, shall be, imprisoned in the state prison not more than fourteen years nor less than two years, and all persons present at such place and at such time, engaged therein, shall be prosecuted, tried and punished for such offense as principals.”
The lower court, it appears, tried the case presented against appellant upon the theory that he had committed the crime of “bunko-steering” as defined by §2178, supra. The jury returned a verdict finding that he was guilty
The question is not, as counsel for the State seemingly argue, in respect to the power of the legislature to prohibit and punish a part of a criminal act committed by a person within the State. That proposition is not before us, and in regard thereto we do not decide.
If the accused, under the facts alleged in the information, can, upon any view, be said to have committed any offense whatever against the laws of this State, then it must be that which is created or defined by §1645, supra, for certainly under the pleading he is not shown to have committed within this State the crime" of bunko-steering as defined by §2178, supra. It is expressly disclosed by the information that all that he did in Hamilton county, Indiana, was to make the representations to Stout which, as charged, served to allure and entice .the latter to go to the city of Springfield in the state of Illinois, at which city it appeared all of the acts were perpetrated by which Stout was compelled to lose or part with his money. The phrase “any place,” as used in the statute defining “bunko-steering,” undoubtedly means and contemplates some place within the State of Indiana, and the meaning thereof can not be so enlarged or extended as to make it apply to and include some place in another state. This meaning of the phrase is made more evident by the closing words of said section, whereby it is declared that ?iall persons pres- • ent at such place at such time, and engaged therein, shall be prosecuted, tried, and punished for such offense as principals.” The principle is elementary that penal statutes
We pass to the consideration of the question as to whether the information charges the offense created or defined by §1645, supra. It will be observed that this statute is of a twofold character. It is made a crime thereunder either to aid in and abet the perpetration of an offense in another state, or to aid and abet in an attempt to do so. This section has never been interpreted or construed by this court; In 1853 an act substantially the same as §1645, supra, was enacted by the legislature. Acts 1853, p. 72, 2 G. & II. p. 392, 2 R. S. 1876, p. 373. This statute was entitled as follows: “An act to provide for the punishment of persons guilty of counseling and advising, aiding and abetting, in this State, in the perpetration, or attempt to perpetrate, an offense in another state, which by the laws of this State shall be felony.” The title thereof fully and clearly indicates that by the enactment of the act of 1853 it was the purpose and object of the legislature to provide a law under and by which any and all persons might be punished who were guilty of counseling, advising, aiding, and abetting within this State another person to commit or perpetrate- some act or acts within some sister state, thereby committing a criminal offense against the laws of that state, which, if committed in the State of Indiana, would by and under its existing laws be a felony. In the opinion of this court in the appeal of Johns v. State, 19 Ind. 421, a dictum of Judge Worden occurs, where, in referring to the act of 1853, supra, he said: “We have a statute providing for the punishment of persons who have become accessories before the fact to felonies committed in other states.” Section 1645, supra, dóes not profess or intend to empower the courts of this State to pun
That the word “offense” used in this statute means a penal or public offense or crime is well settled by the authorities. Bouvier in his Law Dictionary, under the title “offense,” says: “The doing of that which a penal law forbids to be done, or omitting to do what it commands.” It has been held that the terms “offense” and “crime” are synonymous. People, ex rel., v. Board, etc., 39 Hun 507, s. c. People, ex rel., v. French, 102 N. Y. 583, 7 N. E. 913. Abbott’s Law Dictionary, under the title of “offense,” says: “A breach of the laws established for the protection of the public, as distinguished from an infringement of mere private rights; a punishable violation of law; a crime; also, sometimes, a crime of the lesser grade, a misdemeanor.” In Moore v. People, 14 How. (U. S.) 13, 14 L. Ed. 306, the court said: “An offense in its legal signification means the transgression of law.” See, also, State v. Whittemore, 50 N. H. 245, 9 Am. Rep. 196. The terms “crime,” “offense,” and “criminal offense” are all held in the appeal of State, ex rel., w West, 42 Minn. 147, 43 N. W. 845, to be synonymous. Where a statute employs common law terms having a known meaning, it must be presumed, in the absence of anything to the contrary, that such terms or words were used in their common law sense or meaning. Western Union Tel. Co. v. Scircle, 103 Ind. 227.
It will be seen that the section in controversy contemplates or presupposes that there is a principal offender
There is an entire absence in the information of any averment or facts .to show that the acts done and perpetrated at the city of Springfield in the state of Illinois, by which Stout was compelled, as charged, to lose or part with his money, constituted an offense under the laws of the latter state. Eor this reason alone, regardless of any other infirmity which may be imputed to the information, it is fatally defective in charging appellant with the crime defined and created by §1645, supra. Therefore the mo
Judgment reversed.