State v. Flagg

25 Ind. 369 | Ind. | 1865

Ray, J.

This case comes before us upon an appeal from tbe ruling of tbe Circuit Court in sustaining a motion to quash an indictment for perjury.

Tbe indictment charges that, in tbe Court of Common Pleas of Lagrange county, in tbe State of Indiana, at tbe April term, 1863, in a certain action there pending, wherein George A. Whitney, Miles Washburne and Theodore N. Fogue were plaintiffs, and James M. Flagg was defendant, it was claimed by tbe plaintiffs in their complaint that they bad delivered certain notes to said Flagg for collection, and that be bad received tbe money thereon, and refused upon demand to pay tbe same to tbe plaintiffs; that tbe answer alleged payment, and tbe reply was a denial. Tbe indictment then avers, “that said James M. Flagg did then ¡and there, upon tbe trial of tbe matters set forth in said pleadings, take bis solemn corporal oath, &c., to testify to tbe truth, tbe whole truth, and nothing but tbe truth, touching tbe issues joined in a certain action then and there pending in said Court of Common Pleas, wherein George A. Whitney, Miles Washburne and Theodore N. Fogue were plaintiffs, and James M. Flagg was defendant; that be, tbe said James M. Flagg, did then and there, after having been so sworn as aforesaid, on said trial of- said action, feloniously,” &c.

As we have not been favored with a brief by tbe appellee, we are at a loss to determine upon what ground tbe motion to quasb was sustained. Tbe only plausible reason we can discover is, that tbe court may have considered it uncertain, under tbe averments of tbe indictment, whether tbe suit in which tbe.issues are set.forth, although pending in the same court and between the game parties, was the identical suit in which the defendant was sworn and testified as a witness, holding that if it were not the identical suit in which the issues were stated, it would not appear that he was sworn, or that the testimony was material to the point in question. We think, however, the objection is not well taken. The averment is, “that said James M. Flagg did, then and there, upon the trial of the matters set forth in said pleadings,” &c. But, at all events, as the statute provides that the names of the parties to the action need only be set forth, and the court where the case is pending, it follows that the averment that, in the case, in which he did testify, the issues embraced the matters set forth in the pleadings which had been already stated, and they show conclusively that his evidence, which is set out, was touching a matter material to the point in question. We do not, therefore, think that any uncertainty exists as to any fact necessary to be averred in the indictment.-

J). F. WUliamson, Attorney General, for the State.

The judgment is reversed, and the cause remanded with directions to the court below to overrule the motion to quash the indictment.