Hunt v. State , 199 Ind. 550 ( 1927 )

DISSENTING OPINION. I respectfully dissent from the judgment herein.

(1) The purpose of the law in requiring the date of an alleged offense to be placed in the indictment or affidavit is to apprise the defendant of the time of the unlawful act charged against him so that he may prepare his defense and to show that the offense is not barred by the statute of limitations. I believe that the affidavit here accomplishes these things and is sufficient; and under the following statutes, is good as against a motion to quash:

"The indictment or affidavit is sufficient if it can be understood therefrom: . . . Fifth — That the offense charged is stated with such a degree of certainty that the court may pronounce judgment upon a conviction according to the right of the case." § 2224 Burns 1926 (Acts 1905, ch. 169, § 191, p. 584).

"No indictment or affidavit shall be deemed invalid, nor shall the same be set aside or quashed, nor shall the trial, judgment or other proceeding be stayed, arrested or in any manner affected for any of the following defects: . . . Second — For the want of an allegation of the time or place of any material fact, when the venue and the time have once been stated in the indictment or affidavit. Third — That dates and numbers are represented by figures. . . . Eighth — For omitting to state the time at which the offense was committed, in any case in which the time is not the essence of the offense, or for stating the time imperfectly, unless time is the essence of the offense. . . . Tenth — For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendants upon the merits." § 2225 Burns 1926 (Acts 1905, ch. 169, § 192, p. 584).

This case arose in the city court of Evansville. It is a matter of common knowledge that the large number of affidavits necessarily filed in city or police courts are prepared by deputy prosecuting attorneys by filling in blank forms which are provided for that purpose. The allegation in the affidavit is this case as to the time of the offense, as copied into the transcript is "on or about the 27th day of Oct. A.D. nineteen hundred 1923," — "nineteen hundred" appearing in words, followed by an underlined blank space in which appear the figures or Arabic numerals, "1923."

The appellant was convicted, first in the city court and later in the Vanderburgh Circuit Court, from which this appeal is taken, of operating a motor vehicle, an automobile, while in an intoxicated condition. To me, the proposition that the affidavit can be considered as charging appellant with operating an automobile while intoxicated in the year of 1900, a quarter of a century ago, appears not only illogical, but entirely untenable. If the date 1923 did not appear and the affidavit contained only the words "nineteen hundred" the affidavit would in 1923 be insufficient to charge a crime, but the figures 1923 are there! The words "nineteen hundred," followed by the figures 1923 in this affidavit, clearly relate to the century and not to the first year of the century.

In 1900 motor vehicles were not yet in general use and the statute, under which this prosecution was brought, making it unlawful to operate a motor vehicle while in an intoxicated condition, was not enacted until 1923 (Acts 1923, ch. 123, § 1). Certainly the appellant cannot honestly claim that he was misled by the affidavit into the belief that he was being prosecuted for driving an automobile while intoxicated on October 27, 1900, instead of on October 27, 1923. The surplus words "nineteen hundred" placed no greater burden of defense upon the defendant, because the year 1900 was not only prior to the enactment of the law but it was far beyond the statute of limitations at the time of this prosecution.

The affidavit, after alleging the offense, concluded in the usual form "then and there being contrary to the form of the statute," etc., and such an allegation is held to be a sufficient allegation that the act was committed after the statute was in force; Firth v. United States (1918), 253 Fed. 36, 136 C.C.A. 36; State v. Ballard (1812), 6 N.C. 186. A date, alleged in an affidavit as a date of the commission of the offense, which is many years before the enactment of the statute creating the offense has been held to be an impossible date or no date at all; State v.O'Donnell (1889), 81 Me. 271, 17 A. 66.

Where two dates appear in an indictment, one of which is correct and one of which is impossible and apparently a clerical error, the indictment will not be held bad. 14 R.C.L. 180, § 26;State v. Ballamah (1922), 28 N.M. 212, 210 P. 391, 26 A.L.R. 769; Cornett v. Commonwealth (1909), 134 Ky. 613, 121 S.W. 424, 21 Ann. Cas. 399; Van Immons v. State (1905), 29 Ohio Cir. Ct. Rep. 681, 19 Ct. Dec. 681; State v. Brooks (1892), 85 Iowa 366, 52 N.W. 240; State v. Mowry (1899),21 R.I. 376, 43 A. 871; Commonwealth v. Smith (1871),108 Mass. 486.

Where a day certain is laid before the finding of the indictment or affidavit, a later date in the indictment or affidavit has been rejected as surplusage. State v. Woodman (1824), 10 N.C. (3 Hawks) 384; Creed v. State (1913),69 Tex.Crim. 464, 155 S.W. 240; thus leaving the indictment definite and specific as to the date on which it was charged the crime was committed, State v. John (1904), 124 Iowa 230, 100 N.W. 193, and such an error as to the date does not mislead the accused and is not sufficient to invalidate the indictment.Commonwealth v. Roberts (1911), 145 Ky. 290, 140 S.W. 313.

In Hinson v. State (1907), 51 Tex.Crim. Rep.,100 S.W. 939, the indictment recited that "the grand jurors . . . duly organized as such at the July term, A.D. 1690, 1906 . . . present that J.W. Bullard on or about the 26th day of June 1906. . . ." The court said, "this recital clearly shows that the 1690 was placed in the indictment by inadvertance," and held that there was no merit in the contention that the indictment showed two dates.

The correct date "Oct. 27, 1923" was given in the affidavit, and the evidence in the record shows that there was no dispute as to the offense having been committed on that date. The words "nineteen hundred" referring to the century should either have been completed into a date or stricken out but since they were inadvertently left in, they should be considered as amplified and clarified by the underscored and emphasized figures 1923 or should be disregarded as surplusage and as a clerical error.

The ancient rule that all dates or numbers in an affidavit must be spelled out in words has been changed in this state by statute, § 2225 Burns 1926, quoted above, and a charge in an indictment or affidavit in figures as to the time the offense is alleged to have been committed is sufficient. Hampton v.State (1856), 8 Ind. 366; Hizer v. State (1859),12 Ind. 330. I find no case holding that words in an indictment shallper se prevail over figures.

The court states and applies what it terms a "general rule which pertains to bills and notes," that as between "written words and Arabic numerals" the "written words should prevail" citing a similar conclusion "founded upon common sense and experience" by Marius and Story that "a man is more apt to commit error with his pen in writing a figure than he is in writing a word" Story, Prom. Notes (6th ed.) p. 24. The court's assumption, however, that the words "nineteen hundred" were in writing (i.e. in the sense of forming characters by the hand) is, I believe, unwarranted. The record or transcript here is in type and there is nothing therein contained to show, or even to suggest, that the words "nineteen hundred" in the affidavit as filed were in handwriting. On the contrary it seems to me that "common sense and experience" requires the conclusion that the words "nineteen hundred" were printed words on a blank form and the figures "1923" were written or typewritten in, which fact logically accounts for the ruled line which follows the word "hundred" and above which the numerals "1923" appear in the record.

I have suggested to the court that a writ of certiorari be directed to the court below requiring the production of the affidavit filed herein, as provided for in § 718 Burns 1926, § 664 ch. 38, acts of 1881; and § 2406 Burns 1926, § 344, ch. 169 acts of 1905, believing this to be, preferable to resolving against the state any doubt in the mind of the court as to exactly what the affidavit alleged as to the date.

The general rule stated in the negotiable instruments law, in effect in Indiana § 11376 Burns 1926, § 17, ch. 63, Acts 1913 p. 120, as in forty-six other states, is much broader than that stated by the court herein as a general rule of bills and notes and provides that: "Where the sum payable is expressed in words and also in figures and there is a discrepency between the two, the sum denoted by the words is the sum payable" but the remainder of the section, to wit: "but if the words are ambiguous or uncertain reference may be had to the figures to fix theamount . . . Where there is a conflict between the written andprinted provisions of an instrument the written portionsprevail," indicates that even this rule applied to the present case would require the figures "1923" to prevail.

(2) The motion to quash filed by the appellant should have been overruled for the further reason that it was not sufficient to raise the question upon which this court has decided the case.

Section 2227 Burns 1926 (Acts 1905, ch. 169, § 194 p. 584) provides for four conditions, appearing upon the face of an indictment or affidavit, under which a defendant may move to quash. Three of these are as follows: "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 bar to the prosecution." "Fourth — That the indictment or affidavit does not state the offense with sufficient certainty."

Appellant moved to quash "for the reason that the facts stated in said affidavit do not constitute a public offense." The facts stated in the affidavit, viz: that appellant:

"On or about the 27th day of Oct. A.D. . . . 1923, at said county . . . did then and there unlawfully run, drive and operate a certain motor vehicle . . . upon, along and over a certain public highway in said county while he the said Clarence Hunt was in an intoxicated condition, on Lincoln avenue," are sufficient to constitute a public offense. To have presented the question of the effect of the words "nineteen hundred" which appeared between "A.D." and "1923" appellant should have moved to quash on the ground that the affidavit contained matter, which if true would constitute a legal bar to the prosecution or that the affidavit did not state the offense with sufficient certainty. Nothing appears in the record to indicate that the trial court ruled on any question as to the sufficiency of the date set out in the affidavit, or that the question is not raised for the first time on appeal.

(3) But even if the affidavit is considered to be technically defective, the record shows that the appellant has not in any manner been harmed or injured nor have his substantial rights been prejudiced by such defect or by any decision or action of the trial court complained of.

Section 2394 Burns 1926 (§ 334, ch. 169, Acts 1905 p. 657) is as follows: "In consideration of the questions which are presented upon an appeal, the court shall not regard technical errors or defects, or exceptions to any decision or action of the trial court which did not, in the opinion of the court to which the appeal is taken, prejudice the substantial rights of the defendant." Considering in the light of this statute and the numerous cases which have applied it, the alleged error regarding this defect is harmless and should be disregarded. Even in the early case of Respublica v. Newell (1802), 3 Yeates (Pa.) 407, cited in the prevailing opinion, the court quoted the remarks of Lord Hale regarding the extreme technical accuracy anciently required, that: "The great strictnesses and unseemly niceties, required in some indictments, tend to the reproach of the law, to the shame of the government, to the encouragement of villainy, and to the dishonor of God."

"It is the policy of modern courts to disregard mere technical objections and to require only that a criminal pleading shall fully state the essential requirements of the offense charged," 14 R.C.L. 172, and although Indiana has been more reluctant to brush aside the technicalities than many other states, it seems to me that this court must ultimately adopt this modern policy. In Terrell v. United States (1925), 6 F.2d 498, where the indictment charged that the appellant "on the ____ day of ____ in the year 1924, and from thence until and on the ____ day of ____, in the year ____," the court said:

"Error is assigned in overruling the demurrer to the indictment for indefiniteness in the statement of the date of the offense. The indictment advised the defendant of the charge that in 1924, before November 24 of that year, when the indictment was returned by the grand jury, he had been carrying on the business of a retail liquor dealer without paying the special tax. Moreover the record of the trial shows affirmatively that the defendant knew the time and circumstances, and that he suffered no prejudice for lack of a more definite statement of the date. The demurrer was properly overruled. Revised statutes, § 1025, (Comp. St. § 1691); Ledbetter v. United States 170 U.S. 606, 612, 18 S.Ct. 774, 42 L.Ed. 1162."

The statute referred to, provides in terms similar to our own statute:

"No indictment found and presented by a grand jury in any district (or circuit) or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in the matter of form only, which shall not tend to the prejudice of the defendant."

Under a statute requiring the appellate tribunal to disregard "technical errors or defects which do not affect the substantial rights of the parties" it is held in State v. Brooks (1892),85 Iowa 366, 52 N.W. 240, that a judgment of conviction under an indictment, amendment of which on the day of trial was permitted for the purpose of correctly stating therein the date of the offense, which had been laid in the future, subsequent to the finding of the indictment by the grand jury, would not be reversed where it appeared that the correct date was stated several other times in the indictment, and it was impossible that the defendant could have been misled by the error.

The appellant who, at all times has been at liberty under bond, was granted five extensions of time in which to file his brief, and this case, after being briefed, has been pending in this court for more than three years. In the meantime the statute of limitations has long since run and appellant, following the reversal of the judgment on the technical grounds, which necessitates this dissent, cannot again be tried for his violation of the law.

Gemmill, J., concurs in this opinion.