183 N.E. 33 | Ind. | 1932
In the Criminal Court of Lake County appellant and another were charged by affidavit in one count with violating § 2946 Burns 1926, and upon that court's own motion the venue of the cause was changed to the Lake Circuit Court, where, while it was in vacation, he was tried before a jury and convicted. On appeal to this court the questions relied upon for a reversal of the judgment below are covered by the assignment of errors challenging the action of the trial court in overruling his motion to quash and in overruling his motion for a new trial.
The affidavit alleges that another and appellant "did then and there unlawfully, feloniously, falsely and fraudulently make, forge and counterfeit, and did then and there unlawfully, 1. feloniously, falsely and fraudulently cause to be falsely made, forged and counterfeited a certain recognizance bond purporting to have been made and executed by Sophia Vinovich and Nick Vinovich for the appearance of one Mary Cherry on the 28th day of May, 1930, in the Lake *62 Criminal Court, to answer a charge of illegal voting." A copy of the bond alleged to have been forged and caused to be forged was incorporated in the affidavit.
The grounds relied on for quashing the affidavit are: Insufficient facts to constitute a public offense; failure to state the offense with sufficient certainty; and that more than one distinct offense is charged in a single count. The affidavit follows closely the language of the statute, and must be regarded as sufficient unless it must be said that it is bad for duplicity.
The statute, § 2946, supra, provides that "whoever falsely makes or assists in making . . ., forges, . . . or causes to be falsely made, . . . forged, . . . any record or authentic matter of a public nature . . . bond, covenant, writing obligatory, . . . or any other instrument in writing, with intent to defraud any person, body politic or corporate, or utters or publishes as true any such instrument or matter, knowing the same to be false, defaced, altered, forged, counterfeited, . . . with intent to defraud any person, body politic or corporate, shall, on conviction, be imprisoned, etc."
The instrument alleged to be forged, if genuine, would create an obligation, and therefore is sufficient upon which to base a charge of forgery. State v. Hazzard (1907),
Counsel for appellant earnestly insist that the one-count affidavit at bar charged more than one offense, and for that reason it is duplicitous. The law applicable to criminal 4, 5. pleading in this jurisdiction forbids the joining "of separate and distinct offenses created by separate and distinct sections of the statute and separate statutes", or offenses committed at different *63
times, in the same count. Davis v. State (1885),
The precise question, in principle, now under consideration was before this court in Selby v. State (1904),
In support of his motion for a new trial, counsel for appellant first insists that the Lake Circuit Court was without jurisdiction to try this cause, for the reason that the 7-10. Lake Criminal Court failed to find that its docket was congested. The General Assembly of this state, in 1919 (Acts 1919, p. 748), established a criminal court in Lake County, and, by virtue of the law then in force it was vested with "original exclusive jurisdiction within the county, of all crimes and misdemeanors except where jurisdiction is by law conferred on justices of the peace." Acts 1881, Sp. *64 Sess., ch. 34, p. 111, § 4, § 1685 Burns 1926. Furthermore, by statute (Acts 1929, p. 339, § 1, § 1686.1 Burns Supp. 1929), "the judge of such court, at any time when the business of such court becomes congested, may, upon his own motion, transfer any cause or causes filed and docketed in such criminal court to the circuit court of such county, and such cause or causes so transferred shall be redocketed and disposed of as if such cause or causes had been originally filed with such circuit court, and such circuit court shall have the same power, authority and jurisdiction over the causes so transferred to such court for trial as the criminal court of such county, and be subject to the same provisions of law." By § 2 of the same act (§ 1686.2), "The causes so transferred may be heard, tried and determined by the circuit court at any time either during term-time or vacation."
The judge of the criminal court failed to enter of record the statutory ground — business congestion — as the reason for the transfer of this cause to the circuit court. Hence it is claimed that the Lake Circuit Court did not acquire jurisdiction of the subject-matter of this action, for the reason that, as to criminal causes, its jurisdiction is limited and may be obtained only through the methods prescribed by law, citing McCarty v.State (1861),
Appellant next insists that the trial which resulted in his conviction was void. We are informed by the record that on January 27, 1931, while the Lake Circuit Court *66 was in vacation, this cause was called for trial, trial commenced before a jury requested by the state, and continued from day to day until January 30, 1931, when a verdict was reached finding appellant guilty. It is claimed that § 2, supra, gave the trial court authority to try appellant during its vacation. Appellant insists that this provision of the statute alone is insufficient to give the court power to try him at that time and, furthermore, that Chap. 115, Acts 1929, is unconstitutional and void in that it contravenes Art. 4, §§ 19, 22 and 23, of the Constitution of Indiana.
Aside from any constitutional question, section 2, supra,
must be considered and construed along with the statute (§ 1405 Burns 1926) fixing the terms of the Lake Circuit Court, and the decisions of this court which hold that courts are without power to transact any business at a session not fixed by law. Assuming that the legislature, when this section was passed, had in mind the things we have suggested, still the question remains: Is the language of section 2 sufficient to obviate compliance with other statutory provisions long essential to give trial courts, as here, jurisdiction to act in vacation? In Cain et al. v. Goda
(1882),
As we read § 2, supra, it merely sanctioned the trial of criminal cases venued to the circuit court during the vacation of that court. No particular vacation is specified. That 14. question, the time of trial, whether "during term-time or vacation," is left to the court. It will not do to say, in view of the various statutory provisions to which we have referred, that the legislature intended by § 2 to permit the judge of such circuit court to act upon his own volition and to try the cases thus referred to the court without the formalities essential to a legally constituted court.
Upon a careful consideration of the record before us, we conclude that no harm will result from a rule requiring *68 sessions of court to be held strictly in compliance with 15. the statutory provisions from which such authority is derived. The record in this case affirmatively shows that no steps were taken to legally organize a vacation session of the court at which time appellant was tried. This being true, the proceedings then had were void and the court was without power to render a valid judgment thereon. In view of this conclusion, it will be unnecessary for us to consider at this time the constitutional question.
Newly discovered evidence is another cause assigned by appellant for a new trial, but since the judgment must be reversed on other grounds, no purpose will be subserved by a discussion of this specification.
Judgment reversed. Trial court ordered to sustain appellant's motion for a new trial.
