No. 20,474 | Ind. | Nov 2, 1905
On the 12th day of September, 1903, a grand jury of the Wells Circuit Court returned an indictment against appellant,. John W. Terrell, charging him with the crime of murder in the first degree. He unsuccessfully moved to quash the indictment, and then entered a plea of not guilty, and also filed a special answer, wherein he averred that at the time the alleged offense was committed he was a person of unsound mind. The State’s reply to the special answer was a general denial. The case was tried by a jury, and a verdict returned convicting him of murder in the first degree, and assessing his punishment at imprisonment in the state prison during life. Upon this verdict the court, over appellant’s motion for a new trial, pronounced judgment.
The errors assigned and relied upon for a reversal are: (1) Overruling the motion of appellant to quash the indictment; (2) denying his motion in arrest of judgment; (3)
The indictment in this case consists of one count, and it is therein alleged that John W. Terrell, on the 12th day of July, in the year 18903, at the county of Wells and State of Indiana, then and there unlawfully, feloniously, etc., did hill and murder Melvin Wolfe by shooting, etc. Appellant’s counsel contend that the court erred in overruling the motion to quash, for the reason that it is apparent on the face of the pleading that the commission of the alleged offense was on an impossible date, or, in other words, for the reason that it is disclosed upon the face of the indictment that the crime was committed after the return of the indictment, and therefore the latter is fatally defective on a'motion to quash.
In State v. Noland, supra, the offense was charged to have been committed some nine months after the indictment was found. The court held that under the circumstances the indictment was bad. Judge Erazer, in a separate opinion in that case, said: "I was first inclined to hold that this was merely a repugnant allegation, and therefore not affecting the sufficiency of. the pleading, but, on reflection, I am not able to adopt that conclusion. ISTo other time is alleged elsewhere, and this can not therefore be rejected. It follows that the indictment charges what is impossible, and can not therefore legally be regarded as charging anything whatever.”
State v. Windell, supra, was an accusation for betting on the result of an election. The indictment alleged that the defendant on the 14th day of September, 1876, did unlawfully win $5 of and from the person named, by unlawfully betting on the result of an election then and there held on
In Murphy v. State, supra, the indictment charged that the defendant, an unlicensed retailer of intoxicating liquors, at the county of Owen, State of Indiana, “on the 16th day of August, 18184, * * * did then and there unlawfully sell * * * one gill of whiskey.” The contention in that appeal was that the trial court erred in overruling the motion to quash, for the reason that the indictment was fatally defective in alleging that the offense was committed at a time subsequent to the return. In this contention the court concurred. The State in that case insisted that inasmuch as §1825 Burns 1901, §1756 R. S. 1881, provides that no indictment shall be quashed or set aside for omitting to state the time at which the alleged offense was committed, or for stating the time imperfectly, therefore the fixing of an impossible date is no longer a cause for quashing an indictment; citing State v. Sammons (1884), 95 Ind. 22" court="Ind." date_filed="1884-04-22" href="https://app.midpage.ai/document/state-v-sammons-7046980?utm_source=webapp" opinion_id="7046980">95 Ind. 22. This contention the court denied; affirming, in the course of its opinion, that there was nothing in State v. Sammons, supra, either changing or intimating a change in the rule which declares that the fixing of an impossible date vitiates an indictment. The court further affirmed that the above section of the criminal code of 1881 did not work any change in the rule in controversy. The court also declared in the case of Murphy v. State, supra, that in State v. Sammons, supra, it was inferable “that an indictment is bad which either distinctly states an impossible date or fixes the date of the offense at a time beyond that limited by the statute of limi
Murphy v. State (1886), 106 Ind. 96" court="Ind." date_filed="1886-03-26" href="https://app.midpage.ai/document/murphy-v-state-7048301?utm_source=webapp" opinion_id="7048301">106 Ind. 96, is certainly influential and controlling upon the question as presented in the case at bar. That decision was followed and adhered to in Murphy v. State (1886), 107 Ind. 598" court="Ind." date_filed="1886-09-14" href="https://app.midpage.ai/document/murphy-v-state-7048534?utm_source=webapp" opinion_id="7048534">107 Ind. 598, 600.
In Trout v. State (1886), 107 Ind. 578" court="Ind." date_filed="1886-10-08" href="https://app.midpage.ai/document/trout-v-state-7048527?utm_source=webapp" opinion_id="7048527">107 Ind. 578, the prosecution was based on affidavit and information. The latter pleading was filed on the 16th day of January, 1886, and alleged that the offense in question was committed on the 21st day of October, 1886. The court in that case said that if appellant had moved to quash the information, it would have been error, under our decisions, to overrule such motion. Citing Murphy v. State (1886), 106 Ind. 96" court="Ind." date_filed="1886-03-26" href="https://app.midpage.ai/document/murphy-v-state-7048301?utm_source=webapp" opinion_id="7048301">106 Ind. 96, and Dyer v. State (1882), 85 Ind. 525" court="Ind." date_filed="1882-11-15" href="https://app.midpage.ai/document/dyer-v-state-7045695?utm_source=webapp" opinion_id="7045695">85 Ind. 525. In this latter case the prosecution was also by affidavit and information. The affidavit charged that the crime of which the defendant was convicted was committed on December 24, 1881, while the information alleged that it was committed on January 24, 1881. The court held that the motion to quash should have been sustained. Elliott, J., speaking for the court in that appeal, said: “Informations must be supported by an affidavit and must charge the same offense as that described in the affidavit. An information charging a distinct and different offense from that stated in the affidavit can not be upheld. It is difficult, if not impossible, to discover any ground upon which it can be held that an offense committed in January is the same as one committed in the following December. It would be a wide stretch of construction which would declare a misdemeanor perpetrated in December to be the same as one committed in the preceding January. The offense described in the information was committed, taking as true, as it is our duty to do, the statements of the information,
In State v. Patterson (1888), 116 Ind. 45" court="Ind." date_filed="1888-10-13" href="https://app.midpage.ai/document/state-v-patterson-7049457?utm_source=webapp" opinion_id="7049457">116 Ind. 45, the decision in the case of Murphy v. State (1886), 106 Ind. 96" court="Ind." date_filed="1886-03-26" href="https://app.midpage.ai/document/murphy-v-state-7048301?utm_source=webapp" opinion_id="7048301">106 Ind. 96, 55 Am. Rep. 722, was cited in support of the point that an impossible date is fatal to an indictment.
In Commonwealth v. Doyle (1872), 110 Mass. 103" court="Mass." date_filed="1872-09-15" href="https://app.midpage.ai/document/commonwealth-v-doyle-6416914?utm_source=webapp" opinion_id="6416914">110 Mass. 103, the court held that a complaint which charges a crime to have been committed on a future day alleges no offense and is properly quashed.
In State v. Smith (1893), 88 Iowa 178" court="Iowa" date_filed="1893-05-16" href="https://app.midpage.ai/document/state-v-smith-7105779?utm_source=webapp" opinion_id="7105779">88 Iowa 178, 55 N. W. 198, the defendant was charged with obtaining money by means of false pretenses. The indictment was found in February, 1891, and alleged that the crime in question was committed on the 17th day of December, 1891. The accused was put upon trial on this indictment before a jury. At the close of the state’s evidence he unsuccessfully moved for an acquittal, on the ground that the indictment charged the offense to have been'committed at an impossible date; it being apparent, however, upon the face of the indictment that the commission of the alleged offense was fixed at a date subsequent to the return of the indictment. The court, on its own motion, discharged the jury, and resubmitted the cause to another grand jury, which, on March 3,1891, found an indictment against the defendant for the same offense, alleging the commission thereof on the 17th day of December, 1890. To this latter indictment the accused pleaded once in jeopardy on the same charge and former acquittal thereof. A demurrer to his plea was sustained, and upon the issue of not guilty he was convicted, and judgment rendered against him. This judgment on appeal was affirmed. The court held that the indictment in the former case was not sufficient, because it laid the commission of the offense on a future day. The court further held that the indict
The proposition with which we have to deal in this appeal is one relating to pleading; hence we can not indulge in presumptions where there is nothing in the pleading legitimately to sustain them. The indictment in the case at bar fixes a specific date, one not anterior to but subsequent to its return. Certainly, under the circumstances, the court would not be warranted in presuming that the commission of the offense was at some time prior to the finding of the indictment. A precise time upon which the crime in question was committed is stated; no other is alleged or given. A motion to quash an indictment is recognized as the proper procedure to raise an issue of law on ^material facts therein alleged. On appellant’s motion to quash, it is, for the purpose of the motion, conceded or admitted by both parties to the cause that the time at which the offense is charged to have been committed is correctly stated. Murphy v. State (1886), 106 Ind. 96, 55 Am. Rep. 722; Gillett, Crim. Law (2d ed.), §§131, 767.
It would be a great stretch of construction to hold upon the face of the indictment in this case on the motion to quash that the offense in controversy must be treated or considered as though it was one charged to have been committed at a time anterior or antecedent to the finding of the indictment against appellant.
It follows, for the reasons stated, that the court erred in overruling appellant’s motion to quash the indictment. The judgment is therefore reversed, and the cause remanded to the lower court, with instructions to quash the indictment.