Hampton v. State

8 Ind. 336 | Ind. | 1856

Gookins, J.

The appellant was indicted in the Hendricks Circuit Court for forgery in passing a counterfeit bank note. A motion to quash the indictment was overruled, and upon not guilty pleaded, the defendant was tried and convicted, and sentenced to the State’s prison.

Two objections are taken to the indictment. One is, that the time -at which the offense is stated to have been committed is given in figures instead of words. In support of this position the 'appellant cites Finch v. The State, 6 Blackf. 533, and The State v. Voshall, 4 Ind. R. 589. In the latest of these cases the' indictment was found before the R. S. 1852 were in force. These statutes, vol. 2, p. 368, s. 61, provide that no indictment shall be quashed for the reason that dates and numbers are represented by figures.

Another objection is, that the offense is alleged to have been committed “ on or about the 30th day of December,” &c.

At common law it was necessary to state in an indictment a time when the offense Was committed, but in general, a variance in proof from the time stated was immaterial. Arch. Cr. PI. 34, 35.

The 2 R. S. p. 367, s. 56, provides that the precise time of the commission of an offense need not be stated in the indictment or information; but it is sufficient if shown to have been within the statute of limitations, except where the time is an indispensable ingredient of the offense. This .does not change the common law rule as above stated. It. does not dispense with the stating of a time, but it. need not be the precise time proved.

The same statute, s. 61, provides that no indictment or information may be quashed for certain defects enumerated, concluding with, — “nor any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant on the merits.”

"We cannot imagine any words less material than those here complained of, and we are inclined to regard them, under this statute, as mere surplusage. They could have made no difference in the proof required, and could in no way have prejudiced the defendant’s rights, so far as we can perceive.

It may be said that if an offense were laid at a time not more than one day within the statute of limitations, and the words “on or about” were employed, it would not certainly appear that it was not barred. This would he entitled to weight if the allegation could in any degree affect the proof. It is as easy to allege a day cerjust within the period of limitation, and so put the party iQ defense, as to say “on or about;” nor can we readily perceive why it was ever necessary that the allegation should have been more certain as to time than the proof. If this provision of the statute can possibly apply to any case, it must, we think, apply here. It is imperative: no indictment may (which here means shall) be quashed for any defect which does not tend to the prejudice, of the substantial rights of the defendant on the merits.

C. C. Nave and J. Witherow, for the appellant ⁽¹⁾. D. C. Chvpman, for tile State.

The motion to quash the indictment, and that in arrest of judgment, based upon the same objections, were properly overruled.

On the trial an exception was taken to the admission of evidence on the ground of variance. The indictment professed to set out in words and figures a note purporting to have been issued by the bank of Geauga, in the State of Ohio, for the payment of two dollars to the bearer. The instrument offered in evidence had the word “ two ” in small letters twelve times repeated in the upper margin, and also a figure 2 occupying the place of the vignette, not shown in the indictment. In all other respects it was correctly set forth. This was no variance. In describing a counterfeit bank note, it is not necessary to set out the ornamental devices, but only all the substantial parts of the instrument. The number, letter, date, and other parts which would if genuine make the instrument a valid note, must be stated correctly, where the pleader professes to give the tenor of the instrument. This having been done, it was properly admitted in evidence.

Per Curiam.

The judgment is affirmed with costs.