156 Ind. 631 | Ind. | 1901
Lead Opinion
Appellant was indicted, tried, and convicted for a violation of §2353 Burns 1894, §2205 R. S. 1881 and Horner 1897. The errors assigned call in question the action of the court in overruling the motion to quash the indictment, the motion for a new trial, and the motion in arrest.
The indictment,, omitting the formal parts, charges in substance that appellant did unlawfully, feloniously, and designedly, and with intent to cheat and' defraud said Shelby county, make out and file in the auditor’s office of said county, and cause the same to be entered op the claim docket, in said office, and present to the board of commissioners of said Shelby county, a certain false and fraudulent claim against such county, in which said claim it was alleged that Shelby county, Indiana, was indebted to.Campbell, Wild & Co., in the sum of $1,600' for services rendered by said Campbell, Wild & Co., for sáid Shelby county, as financial agent of said county for the year 1899, in securing a loan of $80,000 at two per cent., and with said claim apd as a part thereof there was an affidavit alleging that said claim was justly owing by said Shelby county, arid that the same or any part thereof had never been allowed; that said affidavit was subscribed and sworn .to by said J. Marsh Wilson before Henry Oltman, auditor' of said county, on1 the 12th day of December, 1899; that'said false arid fraudulént claim has been destroyed, or is in the possession of some qne to the grand jury unknown; the said false and fraudulent claim being so made out and presented to such board of commissioners, in manner as above, for the purpose of then and there and thereby procuring an order on such county for said sum of $1,600, for the payment thereof, out of the county treasury of such county, the said J. Marsh Wilson
The part of said §2353 (2205), supra, upon which said indictment is predicated is as follows: “Whoever, knowing the same to be false or fraudulent, * * *- presents for payment, or. certifies as correct to the * * * board of commissioners * * * any claim, bill, * * * .account, * * . * or other evidence of indebtedness, false or fraudulent, for the purpose of procuring the allowance of the same, or an order for the payment thereof out of the treasury of said * * * county, * * * shall be imprisoned in the state prison not more than fourteen years nor less than two years, and fined not more than $1,000 nor less than $10.” ' ■
It is insisted-by appellant that the allegation that he made out and presented said claim, to the board of commissioners-of Shelby county, for the purpose of procuring an order for its payment out of the county treasury, is insufficient, for the reason that boárds of commissioners are only authorized to allow cláims against the county, and not to,issue orders for payment out of the county treasury. While it is .true that boards of commissioners are only authorized to allow claims against the county, and not to issue orders,- yet no order bn the treasury of said county for the payment of -the claim described in the indictment could have been .issued by the auditor of said county for the payment thereof, until after the same had been allowed by the said board of commissioners.- The making out, and verification of said claim, and the filing thereof in the auditor’s office, and presenting the same to the board of commissioners,- were steps neces-' sary to procuring an order for the payment thereof out of the county treasury. §§7845a, 7848a Burns Supp. 1897; Acts 1897, p. 187, §§3, 4.
Appellant urges that as there is no law requiring the county auditor to keep a claim docket in his office, that the indictment is insufficient, because it does not allege that such a docket was kept in the office of the auditor of Shelby county. Section 7848a Burns Supp. 1897 (Acts 1897, p. 188, §4), provides that “No claim shall be allowed by. the board of commissioners of any county In this State unless such claims, duly itemized and verified by the claimant or some one in his behalf, shall have been filed in the auditor’s office of the proper county, and by him placed on the claim docket”, etc. This objection is clearly without merit.
The next objection urged by appellant is that the indictment is bad for duplicity in charging that appellant “presented a false and fraudulent claim against such county”; that it is a crime to present a false claim, and also a crime to present a fraudulent claim, and both are charged. It will be observed that the words “false” and “fraudulent” are used disjunctively in the.statute. The doing of any one of a number of distinct acts is made a crime to which precisely the same penalty is affixed. The indictment only charges appellant with presenting one claim, and that it was
Appellant next contends that the indictment is defective for the reason that the claim presented to the board of commissioners is not set out. Section 1820 Burns 1894, §1751 R. S. 1881 and Horner 1897 provides that “In all other cases except forgery, when it is necessary to make an averment in an indictment or .information as-to any ¿instrument, whether the same consists wholly or in part of writing, printing, or figures, it shall be sufficient to describe such instrument by any name or designation by which the same is usually known, or by the purport thereof.” It is evident that the description of said claim is sufficient under said section. It follows that the motion to quash the indictment was properly overruled. For the same reasons, the court did not err in overruling the motion in arrest.
The Attorney-General insists that no question is presented concerning the action of the court in overruling appellant’s motion for a new trial, for the reason that the same is not in the record. No motion for a new trial appears in the record proper, but there is such motion in a bill of exceptions. A motion for a new trial, and the ruling of the court thereon, and the exceptions thereto, are a part of the record, the same as a motion in arrest of judgment and the ruling thereon and the exceptions thereto without a bill of exceptions. Harris v. State, 155 Ind. 15; Smith v. James, 131 Ind. 131, 133; Nichol v. Thomas, 53 Ind. 42, 51; Hill v. Newman, 47 Ind. 187, 189; Chandler v. State, 141 Ind. 106, 110.
It is settled that matters that are a part of the record without a bill of exceptions cannot be brought into the record by a bill of exceptions. 3 Ency. Pl. & Pr. 404-406; Harris v. State, supra; Home, etc., Co. v. Globe, etc.,
When matters properly a part of the record without a bill of exceptions are only exhibited in a bill .of exceptions copied into the transcript, and do not appear in the record proper, they will not be considered on appeal. Harris v. State, supra; Home, etc., Co. v. Globe, etc., Co., 146 Ind. 673, 681 and cases cited; Robards v. State, supra; 3 Ency. of Pl. & Pr. 406.
Judgment affirmed.
Rehearing
On Petition eor Rehearing.
Appellant has filed a petition for' a rehearing in which he earnestly insists that whether or not the motion for a new trial is in the record was waived by the failure of the Attorney-General to raise that question in his printed brief. It was the duty of appellant to examine the record and see that it was correct, before the same was filed, and if necessary to take timely steps to correct any errors in the same. Miller v. Evansville, etc., R. Co., 143 Ind. 570; Drake v. State, 145 Ind. 210, 218; Watson v. Finch, 150 Ind. 183, 184, 185; Fidelity, etc., Union v. Byrd, 154 Ind. 47, 48; Kinsey v. Myers, 41 Ind. 543, 556, 557; Ewbank’s Manual, §§117, 217.
Even if the Attorney-General had not called attention to the. fact that the motion for a new trial was not in the record, the court was not required to disregard this infirmity and determine questions not in the record on account of the defect in the transcript. Miller v. Evansville, etc., R. Co., supra, on p. 573; Drake v. State, supra, p. 219.
In Martin v. Martin, 74 Ind. 207, this court by Woods, J., said upon this question: “The issue tendered for our
“No matter what error the court below may have committed, it is not manifest in the record, unless saved in the lower court and presented in this court, in accordance with the rules of practice. These rules of practice are the law of the land, their-reasonableness is justified by experience, and, unless ready to abrogate, we have no right to disregard them. We never go beyond the brief of the appellant to search the record in quest of errors which have not been pointed out in -the brief; but the appellee, without filing any brief at all, is entitled to the benefit of everything in the record which may prevent a reversal of the judgment upon the -errors assigned; and, because the counsel on both sides may discuss some question with very great learning and ability, as was done in this case, we are not therefore permitted to'shut our eyes against the fact, which we can not otherwise help seeing, that the question is not in the record. The silence of the appellee on any point is not equal to an agreement to waive the point; the burden is on the appellant to show the error which he has assigned. * * *
“If there are points in a record which counsel do not suggest, and we do not perceive them, there are numerous decisions that we will not consider such points on a petition for a rehearing, but there is no'rule which permits us to ignore what we do see.' We read the briefs of counsel, but, as the appeal is tried by the record, we examine that too.” See, also, Big Creek Stone Co. v. Seward, 144 Ind. 205, 209; Travelers Ins. Co. v. Prairie School Tp., 151 Ind. 36, 41.
The order-book entry showing the filing of a motion for a new trial is copied into the transcript, and instead of setting out the motion as a part of such entry, the clerk has re
It is only, however, where the paper or document in the case is already properly in the transcript as a part of the record that the clerk may refer by page and line to where the same may be found instead of making another copy. Reed v. State, 147 Ind. 41, 48; Seston v. Tether, 145 Ind. 251, 253, 254; Gussman v. Gussman, 140 Ind. 433; Cottrell v. Aetna Life Ins. Co., 97 Ind. 311, 312; Board, etc., v. Karp, 90 Ind. 236, 238, 239; Douglass v. State, 72 Ind. 385, 389, 390; Colee v. State, 75 Ind. 511, 513; Stewart v. Rankin, 39 Ind. 161, 164; Klingensmith v. Faulkner, 84 Ind. 331.
As copying the motion for a new trial in the bill of exceptions did not bring the same into or make it a part of the record, under the rule stated, we can not look from the order-book entry, where it belongs and should have been copied, to the bill of exceptions to consider it. The bill of exceptions not bringing said motion into the record, the-reference thereto by page and line made by the clerk in the order-book entry did not make the motion a part of such entry. Douglass v. State, supra; Reed v. State, supra, and the other cases cited.
After a careful review of the questions decided in the original opinion, we see no reason to change the views there expressed. The petition for a rehearing is therefore overruled.