193 N.E. 380 | Ind. | 1934
Appellant, in a separate trial, was convicted upon an affidavit in two counts; the first charging conspiracy to commit the felony of perjury, and the second charging perjury. The error assigned and presented upon appeal presents for review the action of the trial court in overruling appellant's motion to quash each count of the affidavit.
Among the ground for motion to quash was that the facts stated in the first and second counts of said affidavit do not constitute a public offense, and appellant submits that 1-3. his motion should have been sustained because the affidavit did not bear the indorsement "approved by me" signed by the prosecuting attorney, as required by § 2151, Burns Ann. Ind. St. 1926, § 9-909, Burns Ind. St. Ann. 1933, § 2132, Baldwin's Ind. Stat. Ann. 1934, Acts 1905, ch. 169, § 119, p. 584. In Gunderman v. State (1934), post 515,
Appellee contends that this is not grounds for reversal, but "is merely a technical formality which could have been corrected in the trial court before trial if the court's attention had been directed thereto;" that, in any event, to be available on appeal such error "must have been specifically and directly pointed out to the trial court." And appellee points out that the "motion to quash does not specify this as one of its grounds for quashing in the instant case." The grounds for motion to quash are prescribed by statute.1 In the case of Brogan v. State, supra, it was pointed out in the dissenting opinion of Martin, J., that the motion to quash was upon the second and fourth of the statutory causes and that "nothing appears in this record which shows whether or not the lack of the prosecutor's indorsement of approval was brought to the attention of the *397 trial court nor that the question was not first raised upon appeal." Nevertheless this court held that "as the amended affidavit was not approved by the prosecuting attorney, it was error for the lower court to overrule the motion to quash the same."
Appellee is not warranted in relying upon Tow v. State
(1926),
We are not impressed by the contention of the appellee that the failure of the prosecuting attorney to endorse the affidavit "approved by me," and to sign the endorsement, is an omission of a mere technical formality.
The procedure, provided by §§ 2150 and 2151, Burns, etc., 1926 and 1929, §§ 9-908 and 9-909, Burns, etc., 1933, §§ 2131, 2132, Baldwin's 1934, Acts 1905, ch. 169, §§ 118, 119, p. 584, Acts 1927, ch. 132, § 4, p. 411, which authorizes prosecutions to be commenced in circuit and criminal courts by filing an affidavit bearing the prosecuting attorney's signed endorsement of his approval is the statutory substitute for an earlier procedure *398 which authorized the commencement of prosecutions by information supported by affidavit.2 While the early statute provided3 that the affidavit could be made by any person who "has knowledge of the commission of any offense" and was to be filed with the clerk or deposited with the prosecuting attorney, the information was to be made and filed by the prosecuting attorney. The evident purpose of the General Assembly in providing the present method of instituting a prosecution by the filing of an approved affidavit was to relieve the prosecuting attorney of the duty of preparing and filing an information. But in relieving him of that necessity, the General Assembly imposed upon him the duty of examining, approving, and in effect adopting as his own, the affidavit presented for filing, in order to commence a prosecution. Needless to say, it is unfortunate that this court should be compelled to reverse a case simply because the prosecuting attorney has failed to formally place his endorsement upon the affidavit; but this court can not presume to treat as a mere formal technicality an act which is required of a public officer by an unqualified mandate of the General Assembly. We think it is obvious that the purpose of this requirement was to make sure that the prosecuting attorney would carefully examine the contents of the affidavit. It certainly was not contemplated by the General Assembly *399 that the public official charged with the serious duties of the office of prosecuting attorney would stultify himself by a written declaration that he is approving an affidavit when he has not in fact examined and approved it. From our point of view the endorsement of the prosecuting attorney is not a mere identification, but is intended to be uncontrovertible evidence that he does in fact approve the contents of the affidavit.
The motion to quash should have been sustained for the second of the grounds prescribed by statute.
Appellant's fifth ground of motion to quash is that the first count does not state the offense with sufficient certainty in that "there is no sufficient description in said count in said affidavit of the proceedings wherein the oath was administered and upon which a charge of perjury for falsely testifying would lie."
While it is required that a charge of conspiracy to commit a felony must set out the felony which was the object of the conspiracy, it is not essential to the consummation of 4-6. the offense of conspiracy that the purposed felony was in fact committed. Under the statute defining conspiracy to commit a felony4 and defining perjury5 the offense of conspiracy to commit perjury may be committed even though none of the steps which are essential elements of the offense *400 of perjury have been taken. Consequently, in charging the offense of conspiracy to commit perjury it is unnecessary to allege that the proceeding in which the false testimony was intended to be given was pending at the time the unlawful agreement was made. The first count of the affidavit was not subject to a motion to quash for uncertainty for the cause set out in the fifth ground of appellant's motion to quash.
Appellant also moved to quash both counts of the affidavit for lack of certainty on the additional ground that it does not sufficiently appear in the first count of the affidavit 7. that the testimony conspired to be given, as alleged, was false; and that it does not sufficiently appear in the second count of the affidavit that the testimony given, as alleged therein, was false.
In this respect the first count alleged that the defendants would "unlawfully, feloniously, wilfully, corruptly, knowingly, falsely, wickedly, designedly and intending the due course of justice to pervert, depose and give evidence to and before said court in said cause between the State of Indiana and Bud McGill . . . to the effect and in substance following: `That said pistol, commonly called a revolver, loaded with gunpowder and leaden balls, was found in an open field near Covert Avenue in said Vanderburgh County, Indiana, at a point near where the said Bud McGill was shot by the said Ernest Lynn on the said 25th day of May, A.D. 1931, during the perpetration, by the said Bud McGill, of said robbery on the said Ernst Lynn' that the said testimony so to be given in evidence by the said (defendants) and each of them as aforesaid, was to be false in that the said pistol referred to in said testimony was found at and in the home of the said Bud McGill in the City of Evansville, said County and State, as they, and each of them then and there and at all times mentioned *401 in this affidavit, well knew." The facts concerning the testimony given are alleged in the second count with substantially the same particularity as in the first, and both counts sufficiently allege the falsity of such testimony.
Appellant contends on appeal that the affidavit is bad for duplicity in that the first count charges a conspiracy to commit six separate offenses and the second count charges the 8, 9. commission of six separate offenses; that the offense of perjury is necessarily several and cannot be committed by two or more jointly. The propositions thus urged were not specifically set out in appellant's motion to quash; on the contrary the affidavit's alleged lack of certainty complained of in the motion to quash was set out therein as consisting of (1) an absence of facts showing that the testimony to be given upon the trial of McGill was false in fact, and (2) absence of a sufficient description of the proceedings wherein the oath was to be administered and upon which a charge of perjury or falsely testifying would lie. But a motion to quash is sufficient if it is in the language of the statute and a defendant is not required to support his motion to quash by memoranda, or other pleading, specifying the defect in the affidavit or indictment as a result of which "it appears upon the face thereof" that either (1) "the facts stated in the indictment or affidavit do not constitute a public offense" or (2) "the indictment or affidavit does not state the offense with sufficient certainty." Robinson v.State (1916),
The weight of authority is to the effect that perjury is a distinct offense which can be committed only by an individual in his individual capacity and that ordinarily two or more 10. persons cannot be joined in a single charge of perjury.6 Exceptions to that rule are made where the offense consists of the swearing to one joint false affidavit by two or more persons at the same time,7 or where one makes the false affidavit "while another is standing by instigating him."8
By the second count of the affidavit9 six defendants were joined in a single affidavit in which each were charged with having committed a similar, though separate and distinct, 11. offense of perjury. It was not charged that one of the defendants committed the offense of perjury at the instigation of the others nor that all joined in swearing to a single joint false affidavit. The offense with which appellant was charged was similar to the one charged against *403 each of the other defendants but was separate and distinct from such other offenses. In stating the offense with which appellant was charged in the second count it was improper to join him with any other defendant.
While two or more persons can not be joined in an affidavit charging separate, though similar, perjuries, this does not prevent their being joined in a charge of conspiracy to 12, 13. commit several perjuries. The gist of the offense of conspiracy consists of an unlawful agreement, union, or combination of persons "for the purpose of committing a felony;" and the fact that by the terms of the agreement or understanding the overt act is to be committed by but one of the parties does not render the agreement lawful as to the other parties to such agreement. Durke v. State (1933),
It was not error to overrule appellant's motion to require the state to elect between counts. An indictment may contain separate counts charging conspiracy to commit a felony and the 14. intended felony, respectively, and both may be tried at the same time.10 *404
Because of the prosecuting attorney's failure to endorse the affidavit "approved by me," appellant's motion to quash should have been sustained. For this reason the judgment is reversed with directions to the trial court to sustain the motion to quash and for further proceedings not inconsistent with this opinion.
First. That the grand jury which found the indictment had no legal authority to inquire into the offense charged.
Second. That the facts stated in the indictment or affidavit do not constitute a public offense.
Third. That the indictment or affidavit contains any matter which, if true, would constitute a legal justification of the offense charged, or other legal bar to the prosecution.
Fourth. That the indictment or affidavit does not state the offense with sufficient certainty." § 2227, Burns, etc., 1926, § 9-1129, Burns, etc., 1933, § 2208, Baldwin's 1934, Acts 1905 ch. 169, § 194, p. 584.
"When any person has knowledge of the commission of any offense, which may be prosecuted by information, he may make his affidavit before any officer authorized to administer oaths, setting forth the offense and the person charged, in plain and concise language, and file the same with the clerk, or deposit it with the prosecuting attorney." Ibid, § 20, p. 364.
"The prosecuting attorney must file an information as soon as practicable, in term or vacation, in every case, after the charge is made by affidavit." § 23, p. 364.
"The affidavit must be filed with the information." § 24, p. 364.