188 Ind. 147 | Ind. | 1919
— Appellant was convicted of conspiracy to commit a felony. The indictment, in two counts, was against him and three other persons. He was tried separately.
The questions are raised by motion to quash each count of the indictment. In the first count, omitting the formal matters, the grand jury presents: “That Edwin M. Hinshaw (with three others, at a time named) * * * did then and there unlawfully, knowingly and feloniously unite, combine, conspire, confederate and agree to and with each other, for the object and purpose, designedly and with the intent to cheat and defraud divers citizens of said county of Hamilton, and the public generally, by inducing and procuring said citizens and the public generally to pay and deposit money, and to deposit checks and drafts to the credit of such depositors in and into the Farmers and Merchants Bank of Cicero, Indiana, the said bank being then and
Then this count alleges in substance that appellant and other persons named knew that the bank was insolvent ; that divers citizens of the county and the public generally relied on the pretenses and representations and deposited their money in this bank; that the money was lost; that appellant and the three others were officers of the bank.
The above cases mean that all the elements of the felony, which is the purpose and object of the conspir
It is earnestly insisted by learned counsel for the appellant that this count of the indictment does nothing but charge appellant with conspiring “to cheat and defraud,” and that the further allegation in the indictment that the purpose of the alleged conspiracy was accomplished is but an aggravation of the charge of conspiracy, and does not aid this count of the indictment, because there is nowhere aptly charged, as the purpose and object of the conspiracy, anything which is denominated a felony by the statutes of this state.
are included not only the crimes of false pretense,
Undoubtedly the state was misled in drawing this indictment by examining generally the law on the subject of conspiracy, rather than confining its investigation to the adjudicated cases in this state. It máy be that the state was relying on chapter 62, Acts 1915 p. 123, which is designated “An act concerning proceedings in civil and criminal cases.” This act provides that “all pleadings * * * in any * * * criminal case, * * * that all recitals therein and all statements contained in any participial expression, etc., * * * shall be considered and held to be allegations of fact whenever necessary to the sufficiency thereof” etc., unless and until the opposing party moves to make such pleading more specific. We infer from the record in this case that this count in the indictment was sustained in the lower court by virtue of this statute and because of arguments made thereon, because after the motion to quash we find a motion to make this count of the indictment more specific. The defendant had evidently been met by the state with arguments that the recitals in the pleading were deemed to be positive allegations of the gist of the purposed crime, and that the defendant was bound thereby, unless and until he made a motion to make the same more specific.
The legislature will not be permitted by indirection to do what it could not do directly. It has no power under the fundamental law to compel one who is charged with crime to meet the conclusions and.recitals of the pleader, and it has no power to do away with the clear and positive averments with reference to the gist of the offense. It once tried to do this directly by saying that, in conspiracy for the purpose and object of committing a felony, it should not be necessary for the state to
The next count of the indictment charges that appellant and three others, as officers of the Farmers’ and Merchants’ Bank of Cicero, it being an incorporated bank, “did then and there unlawfully, knowingly and feloniously unite, combine, confederate and agree to and with each other to feloniously and fraudulently receive and take from divers citizens of said county and the public generally, who and each of whom, were not then and there indebted to said bank and to have then and there deposited in said bank money, checks and drafts belonging to and then and there the property of said depositors, that is to say, the property of the depositor or depositors who deposited the same; that said bank was then and there wholly insolvent, which fact was then and there well known to the said * * * Edwin M. Hinshaw, * * * (and three other persons), and each of them, whereby said money, checks and drafts and each of the same, would be and were, lost to said depositors and each of them.”
This count of the indictment is intended to charge as the purpose and object of the conspiracy what is commonly known as bankers’ embezzlement under §2294 Burns 1914, Acts 1907 p. 14, which provides: “If * * * any officer, * * * of any * * * incorporated bank * * * shall fraudulently receive from any person, * * * not indebted to such * * * incorporated bank any money, * * * when, at the time of receiving such deposit, such * * * .incorporated bank is insolvent, whereby the deposit so made shall be lost to the depositor, such * * * officer, * * * so receiving such, deposit shall be deemed guilty of embezzlement.” . ■
Both counts of the indictment are bad, and .the court erred in overruling appellant’s motion to quash.
The judgment is reversed, with instructions to the trial court to sustain appellant’s motion to quash each count of the indictment.