193 Ind. 526 | Ind. | 1923
The appellant was convicted of a conspiracy to commit a felony. The indictment was based on §2647 Burns 1914, Acts 1905 p. 584, which is as follows: “Any person or persons who shall unite or combine with any other person or persons for the purpose of committing a felony, within or without this state; or any person or persons who shall knowingly unite with any other person or persons, body, association, or combination of persons, whose object is the commission of a felony or felonies, within or without this state, shall, on conviction, be fined not less than twenty-five dollars nor more than five thousand dollars, and imprisoned in the state prison not less than two years nor more than fourteen years.”
The appellant-moved to quash the indictment for the following reasons: 1. That the facts set forth in the indictment do not constitute a public offense. 2. That the indictment does not state the offense with sufficient certainty. The appellant’s motion to quash was overruled, and the defendant entered a plea of not guilty, upon which a trial was had. The trial was by jury resulting in the following verdict: “We, the jury, find
After a motion for a new trial had been overruled, the defendant moved in arrest of judgment upon the following grounds: That the facts stated in the indictment in said cause do not constitute a public offense under the laws of the State of, Indiana. The judgment in arrest was overruled and the court rendered judgment on the verdict as follows: “It is now ordered and adjudged by the court that the defendant for the offense by him so committed do make his fine to the State of Indiana, in the penal sum of $100 and that he be imprisoned in the Indiana State Prison for a term of not less than two years nor more than 14 years; and that he pay and satisfy all the costs and .charges herein.” ;
From such judgment, appellant appeals, and assigns as errors: 1. The overruling of appellant’s motion to quash the indictment herein. 2. The overruling of appellant’s motion in arrest of judgment.
The indictment charges that the appellant and two other defendants named therein were guilty of a violation of §2647 Burns 1914, supra, defining a conspiracy to commit a felony. It is contended by the appellant that the crime being a conspiracy to commit a felony the purposed felony must be charged as specifically as though the defendant were on trial for that felony. In this the appellant is correct. See Hinshaw v. State (1919), 188 Ind. 147, 122 N. E. 418, and cases there cited.
It is claimed by the appellant that the indictment nowhere charges as the purpose and object of the conspiracy anything which is. denominated as felony by the statutes of this state. By reference to the indict
“That the appellant and his two confederates named therein did then and there unlawfully, knowingly, and feloniously 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 swindle and defraud the Union Insurance Company of Indiana, a corporation, in the sum of $6,800, by then and there causing to bé presented by one Mrs. Frank Fitzgibbons to the Claim Department of the said Union Insurance Company of Indiana, a corporation, a false and fraudulent proof of loss by theft of an automobile, which said automobile was then and there insured against loss by theft by the said Union Insurance Company of Indiana, a corporation, by a policy of insurance which was then and there in full force and effect and which had theretofore been issued by said Union Insurance Company of Indiana on said automobile and was then and there issued in the name of Mrs. Frank Fitzgibbons, whose Christian name to the grand jurors is unknown. The said automobile being then and there under the control and supervision of and in the possession of the said Frank Fitzgibbons, the said Frank Fitzgibbons then and there instructed and directed the said Herman Chandjie and the said Edward Siersdorfer to remove same from the State of Indiana and to dispose of said automobile. That the said Frank Fitzgibbons, Herman Chandjie and Edward Siersdorfer did then and there unlawfully, knowingly and feloniously unite, combine, conspire, confederate and agree to and with each other that the said Herman Chandjie and the said Edward Siersdorfer should remove from the State of Indiana and dispose of said automobile and that the said Herman Chandjie and Edward Siersdorfer, having so united, conspired, combined, confederated and agreed did in pursuance thereof remove from the State of Indiana said automobile and did then and there and thereby cause the said Mrs. Frank Fitzgibbons, whose Christian name to the grand jurors is unknown, to present a false and*530 fraudulent claim for the 'loss of said automobile to the said insurance company with the unlawful and felonious intent to swindle and defraud said insurance company of said sum of sixty-eight hundred ($6,800) dollars.”
The state contends that the felony which is the object of the conspiracy is that of swindling and defrauding an underwriter and cites §2643 Burns 1914, Acts 1905 p. 584, which reads as follows: “Whoever shall knowingly make ' any false or fraudulent representation in or with reference to any application for insurance, or present, or cause to be presented, any false or fraudulent claim, with intent to obtain any money or benefit in, to or from any corporation, association or society transacting insurance or indemnity business of any kind; or whoever shall prepare, make or subscribe any account, certificate, survey, affidavit, proof of loss, or other book, paper or writing, with intent to present or use the same, or allow it to be presented or used in support of any such claim; or whoever shall wilfully make a false statement of any material fact or thing in a sworn statement as to the death or disability of the holder of any certificate or policy in any life, accident, casualty or indemnity insurance corporation, association or society, for the purpose of procuring payment of a benefit named in the certificate or policy of such holder, shall, on conviction, be fined not more than one thousand dollars, to which may be added imprisonment in the state prison not less than one year nor more than three years.”
In Indiana all crimes are statutory. §237 Burns 1914, §237 R. S. 1881; Hinshaw v. State, supra.
If the offense attempted to be described as the purposed crime in the indictment herein is defined by the statute it must be in that clause which provides that “whoever shall knowingly present or cause to be pre
The indictment alleges that the appellant and his two confederates named therein did unlawfully, knowingly, and feloniously unite, 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 swindle and defraud the Union Insurance Company of Indiana, a corporation, in the sum of $6,800, by then and there causing to be presented by one Mrs. Frank Fitzgibbons to the claim department of said Union Insurance Company, a false and fraudulent proof of loss by theft of an automobile which was then and there insured against loss by theft by said Union Insurance Company of Indiana, by a policy that hád theretofore been issued on said automobile in the name of said Mrs. Frank Fitzgibbons. It does not allege any facts showing how or by what means the said conspirators caused her to present the said false and fraudulent proof of loss by theft. The indictment, however, while alleging that the insurance policy was issued in the name of Mrs. Frank Fitzgibbons alleges that the automobile was then and there under the control and supervision of and in the possession of the said Frank Fitzgibbons and that the said Frank Fitzgibbons then and there instructed and directed said Herman Chandjie and said Edward Siersdorfer to remove the same from the State of Indiana and dispose ■ of said automobile. That the said Herman Chandjie and the said Edward Siersdorfer
Under the rule that the purposed felony must be charged as specifically as though the defendant were on trial for that felony it must be held that the indictment in this case does not state a public offense. Landringham v. State (1874), 49 Ind. 186; Scudder v. State (1878), 62 Ind. 13; Smith v. State (1884), 93 Ind. 67; Green v. State (1901), 157 Ind. 101; Eacock v. State (1907), 169 Ind. 488; Woodsmall v. State (1913), 179 Ind. 697; Allen v. State (1915), 183 Ind. 37; Hinshaw v. State, supra.
Judgment reversed, with instructions to sustain appellant’s motion to quash the indictment.