Sidebilder
PDF
ePub

(146 N.E.)

no occasion for the circuit court of Cook county to order the funds paid into the hands of the county treasurer, to abide the result of the proceeding to register title under the Torrens Act, as that suit has abated and is abandoned. Besides, appellants are by the former judgment of this court estopped to raise that question in this proceeding.

Hurd Rev. St. 1923, c. 120, § 210), a tax deed | mer record and this court necessarily passed executed by a county clerk is only prima upon that question. There was therefore facie evidence of these facts: First, that the real estate conveyed was subject to taxation at the time assessed and had been listed and assessed in the time and manner required by law; second, that the taxes or special assessments were not paid at any time before sale; third, that the real estate conveyed had not been redeemed from sale at the date of the deed; fourth, that the real estate was advertised for sale in the manner and for the length of time required by law; fifth, that the real estate was sold for taxes or special assessments, as stated in the deed; sixth, that the grantee in the deed was the purchaser or assignee of the purchaser; and, seventh, that the sale was conducted in the manner required by law. There was no evidence in the record that there had been a compliance with the provisions of section 216 of the Revenue Act (section 202) with reference to notice. There was no evidence that Jacob Glos had made an affidavit for a tax deed, as required by section 217 of the Revenue Act (section 203). No precept or judgment is shown. The court, therefore, was warranted in declaring the tax deeds void. Gilbreath v. Dilday, 152 Ill. 207, 38 N. E. 572; Gage v. Nichols, 135 Ill. 128, 25 N. E. 672.

[5-7] Appellants reargue the question that they are entitled to remuneration under their tax deeds, and make reference to the fact that an application to register title to the lots in controversy under the Torrens Act was made by Oscar E. Leinen in 1909, and that there was an offer in that proceeding to do equity by reimbursing the holders of the void tax titles. The evidence in the record concerning that is to the effect that that proceeding was abandoned, although it appears that the proceeding was never dismissed by Leinen in his lifetime. Leinen is dead and

[8] There is no merit in the contention that Anna M. Condon was required to make as parties defendant to her petition Walter A. Glos, Emma J. Glos, or any of the other grantees named in the two quitclaim deeds executed by Jacob Glos and wife. These deeds only purported to convey an interest in land or lots acquired by Jacob Glos under the same tax deeds held void by the lower court. They were all recorded after the condemnation suit was brought, and they were bound by the litigation condemning the lots and by the order of the court entered therein as to the funds. If they wanted to litigate their right to the funds, they had a right to do so by going into the circuit court as did Mrs. Condon and the appellants and make whatever claim to the funds they had, if any. Mrs. Condon made no one a party to her petition, and she was not required to do so. All that she had to do under her petition was to establish her title, and it was the duty of appellants, and all parties claiming under them, to do likewise.

We adhere to this court's decision on the former record and see no occasion for modi

fying the same in any particular.

The judgment of the circuit court is affirmed.

Judgment affirmed.

BARKER v. STATE. (No. 24620.)

the proceedings as to him abated by his death.
The former decision of this court, however,
is conclusive of all of appellants' rights to
claim remuneration under the tax deeds, as
it was decided in that case that they were
not entitled to any remuneration out of the
funds. The rule of law is that when litiga-
tion is prosecuted to an appellate tribunal
and questions of law are decided, all such
questions relating to the same subject-matter
which were open to consideration and could
have been presented are res judicata, wheth-
er they were presented or not. This is true
whether the judgment was reversed and the
cause remanded or the judgment affirmed.
Lusk v. City of Chicago, 211 Ill. 183, 71 N.
E. 878; People v. Waite, 243 Ill. 156, 90
N. E. 183; Village of Oak Park v. Swigart,
266 Ill. 60, 107 N. E. 158. As a matter of
fact, the evidence as to Leinen's application
for registration of his title was in the for-
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(Supreme Court of Indiana. Feb. 25, 1925.)
I. Indictment and information 137 (7) —
Motion to quash affidavit as whole properly
overruled, where some of counts sufficient.

Motion to quash affidavit containing six counts in a liquor prosecution as a whole was properly overruled, where four counts were obviously sufficient.

2. Criminal law ~1167(3)-Overruling of motion to quash affidavit in liquor prosecution held harmless.

Overruling of motion to quash affidavit in imposed fine and imprisonment for 30 days at liquor prosecution was harmless, where verdict state farm, as this amounted to an acquittal of felonies attempted to be charged in counts alleged to be defective.

3. Criminal law 970(7)-Motion in arrest of judgment challenging sufficiency of indictment good in part held properly overruled. Motion in arrest of judgment in liquor prosecution under Burns' Ann. St. 1914, § 2159

(Acts 1905, c. 169, § 283), challenging sufficiency of facts stated in indictment containing six counts as a whole, was properly overruled, where indictment sufficiently charged several

misdemeanors.

charged in the counts which counsel say were defective, thereby affirmatively showing that his substantial rights were not prejudiced even if the ruling had been erroneous.

[3] The motion in arrest of judgment chal4. Criminal law 951(1)-Motion for new lenged the sufficiency of the facts stated in trial properly overruled, where reasons ex- the indictment as a whole to constitute a isted when motion in arrest filed. cause of action, and since it did sufficiently Motion for new trial was properly over-charge the commission, not only of one, but ruled, where filed nearly a month after a motion in arrest of judgment, for reasons existing mitted in overruling it. of several misdemeanors, no error was comBass v. State, 188 Ind. 21, 23, 120 N. E. 657; Bottorff v. Bot

when motion in arrest was filed.

Appeal from Circuit Court, Johnson Coun- torff, 190 Ind. 90, 92, 129 N. E. 478; section 2159, Burns' 1914; section 283, ch. 169, Acts 1905, p. 646.

ty; Fremont Miller, Judge.

Irving Barker was convicted of violating the Prohibition Law, and he appeals. Af

firmed.

[4] Filing a motion in arrest of judgment cuts off the right afterward to make a motion for a new trial, unless for reasons that

Thos. E. Garvin, of Indianapolis, for ap- did not exist at the time the motion in arrest pellant.

U. S. Lesh, Atty. Gen., for the State.

EWBANK, J. Appellant was prosecuted upon an affidavit in six counts, all of which purported to charge that on the 9th day of February, 1923, he had offended against the prohibition laws of the state; each count undertaking to charge a different offense. A motion in general terms "to quash the affidavit filed herein against him for the following reasons," setting out certain alleged objections to the sufficiency of the different counts, was overruled, and the defendant (appellant) excepted.

*

*

*

[1] The jury returned a general verdict, on June 4, 1923, finding the defendant "guilty as charged in the affidavit in this case, and that he be fined $500 and imprisoned in the Indiana State Farm 30 days." On the same day defendant filed a motion asking "that the judgment be arrested on the following grounds, to wit," specifying that the facts stated in each count of the affidavit did not constitute a public offense. This motion was overruled, and defendant excepted. Almost a month later, on July 3d, he filed a motion for a new trial, which was overruled and he excepted. This appeal is from a judgment upon the verdict. The motion to quash challenged the sufficiency of the affidavit as a whole, and since counsel do not even suggest that four of the counts were defective in any respect, and obviously they were sufficient, the court did not err in overruling the motion. One good count is sufficient to withstand a general motion to quash the affidavit as a whole, however defective the other counts may be. Ledgerwood v. State, 134 Ind. 81, 83, 33 N. E. 631; Bryant v. State, 106 Ind. 549, 550, 7 N. E. 217.

[2] The verdict fixing the penalty at a fine and imprisonment for 30 days at the Indiana State Farm amounted to an acquittal of appellant of the felonies attempted to be

was filed, and no questions are presented by appellant's motion for a new trial filed nearly a month after the motion in arrest had been made and ruled on. Page v. State (Ind.) 139 N. E. 143, 145; Earle v. State (Ind.) 142 N. E. 405, 407; Boos v. State, 181 Ind. 562, 105 N. E. 117; Turner v. State, 175 Ind. 1, 3, 93 N. E. 225.

The judgment is affirmed

MELAND v. STATE. (No. 24580.) (Supreme Court of Indiana. Feb. 24, 1925.) 1. False pretenses 34-Indictment held sufficient to charge false representation of a present fact.

Indictment in substantial conformity with Burns' Ann. St. 1914, § 2588 (Acts of 1905, c. client's signature to a promissory note by rep169, § 677), charging attorney with obtaining resenting that deposit with clerk was necessary, held sufficiently to charge false representation of a present fact.

2. Judges 25(1)-Second special judge held authorized to sign record of action taken by predecessor.

Where special judge died without signing record of proceedings on last day of trial when finding was made, second special judge was authorized to sign record of action taken by his predecessor in view of Burns' Ann. St. 1914, § 1451 (Rev. St. 1881, § 1331).

3. Criminal law 1144 (19)-Appellate Court would presume that signing of record by second special judge was in accordance with law.

Where second special judge signed record of action taken by his predecessor on last day that he held court before his death, Appellate firmative showing as to when record was signed, Court would presume, in absence of any afexcept that signature appeared at conclusion of entry, that record was signed in accordance with law.

[merged small][ocr errors]

(146 N.E.)

Hans C. Meland was convicted of obtaining of this indictment suggested by counsel for by false pretenses a signature to a promisAffirmed. sory note, and he appeals.

Hans C. Meland, pro se.

U. S. Lesh, Atty. Gen., for the State.

EWBANK, J. Appellant, as defendant below, was charged by indictment with the offense of obtaining by false pretenses the signature to a promissory note of a woman for whom he was acting as attorney. A special judge having been appointed upon his application, the cause was submitted for trial, and a finding was made and entered on the order book that he was guilty as charged, and for his offense should be imprisoned in the county jail for six months and fined $50. The special judge died without having signed the record of proceedings on the last day of the trial when the finding was made, and a month later another special judge was appointed and qualified, by whom judgment was rendered some months later in conformity with the finding. Thereupon, as stated by appellant in his brief, the new special judge, "on the 23d day of June, 1923, signed the record that had been made by his predecessor on the 17th of April, 1923, without causing the record to show that said signing was nunc pro tunc." The action of the trial court in overruling a motion to quash the indictment, and the act of the second special judge in signing the record made by the first one as stated, are insisted upon as causes for asking that the judgment be reversed.

The indictment charges, in substantial conformity with the provisions of the statute (section 2588, Burus 1914; section 677, c. 169, Acts 1905, p. 751), that on, etc., at, etc., the defendant, with intent by such false pre tense to cheat and defraud Josephine E. Noonan, for the purpose of obtaining her signature to a certain promissory note for $300 that is set out at length, did then and there unlawfully, feloniously, falsely, and designedly pretend to her that he had prayed and taken an appeal of a certain divorce suit on her behalf to the Supreme Court of Indiana, and “that $300 in cash was required to be placed in the hands of the clerk of the trial court by him as her attorney in perfecting her appeal, "whereas in truth and in fact this was not required; that believing and relying on said false representations and being deceived thereby, having no means of learing the facts to the contrary, she did affix her signature to said note, by reason of such reliance and belief, and that defendant received and obtained possession thereof, and disposed of the same for value, before maturity, to an innocent holder thereof, to the injury of said Josephine E. Noonan, contrary, etc.

the appellant is the assertion that it charges "merely the representation of a thing that may happen in the future and not the representation of an existing fact." But the allegation that he falsely represented to Mrs. Noonan "that $300 in cash was required to be placed in the hands of the clerk of said superior court by him as her attorney for her in perfecting said appeal," and thereby obtained her signature to a note for that amount which he cashed, sufficiently charged the false representation of a present fact. No error was committed in overruling the motion to quash the affidavit.

[2] As to the act of the second special judge' in signing the record of the action taken by his predecessor on the last day that he held court before his death, the statute expressly authorized this to be done. Section 1451, Burns 1914; section 1331, R. S. 1881; Owen v. Harriott, 47 Ind. App. 359, 94 N. E. 591.

[3] And in the absence of any affirmative showing as to the time when or the circumstances under which the record was signed, except that the signature of the second special judge appears at the conclusion of the entry, we must presume that it was signed in all respects in obedience to the law. Close V. Pittsburg, etc., R. Co., 150 Ind. 560, 565, 50 N. E. 560; Tilden v. Louisville, etc., Co., 157 Ind. 532, 534, 62 N. E. 31; Aufderheide V. Rohr, 187 Ind. 205, 210, 118 Ń. E. 824. Ewbank Manual, §§ 122, 198; Elliott, Appel late Proc. §§ 709-712.

The judgment is affirmed.

SIMPSON v. STATE. (No. 24588.) (Supreme Court of Indiana. Feb. 24, 1925.) 1. Indictment and information 91(2)—Affidavit, charging in language of statute offense of transporting intoxicating liquor in automobile, held sufficient.

c.

Affidavit, charging in language of Acts 1923, 34, § 1, the offense of transporting intoxicating liquor in an automobile, held sufficient without use of the word "feloniously," in view of Burns' Ann. St. 1914, § 237, abolishing common-law crimes, and section 2040.

2.

Criminal law 13-Act making transportation of liquor in automobile offense held not void as not designating place of imprisonment of offender under 30 years of age.

Acts 1923, c. 34, § 1, making transportation of intoxicating liquor in automobile an offense, held not void as not designating place of imprisonment of offender under 30 years of age. and over 16, in view of Burns' Ann. St. 1914, §§ 2151, 9907.

3. Criminal law 59(5)-Person aiding in commission of felony is subject to prosecution and conviction same as principal,

Person aiding in commission of felony is [1] The only objection to the sufficiency subject to prosecution and conviction as if he

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small]

EWBANK, J. Appellant was convicted on a charge of unlawfully transporting intoxicating liquor in an automobile; the jury finding that he was 28 years of age. He has assigned as error the overruling, severally, of his motions for a new trial, to quash the affidavit, in arrest of judgment, and to modify the judgment.

[1] The affidavit upon which he was prosecuted charged that on, etc., at, etc., appellant and two other defendants "did then and there transport intoxicating liquor in an automobile, contrary," etc. The only objection to its sufficiency suggested by counsel is that it does not allege that he "feloniously" did the alleged acts, which averment would be necessary in charging a felony at common law. But common-law crimes are abolished

6. Criminal law 829(1)-Refusal to give requested instructions as to matters suffciently covered by instructions given held noted (section 1, c. 34, Acts 1923, p. 108) does

error.

Refusal to give requested instructions as to matters sufficiently covered by instructions given held not error.

7. Criminal law 1172(2)-Instruction pertaining to drinking of liquor from bottle while riding in automobile, as item of evidence of transportation, held not reversible error.

In prosecution under Acts 1923, c. 34, § 1, for unlawful transportation of intoxicating liquor in automobile, instruction pertaining to drinking of liquor from bottle while riding in automobile, as item of evidence of transportation, held not to require reversal, where the reference to drinking was merely incidental to the general purport of a correct instruction as to acts constituting guilt, and the evidence clearly established accused's active participation in the transportation of the liquor.

8. Intoxicating liquors 210-Affidavit, alleg

ing transportation of intoxicating liquor in automobile, held not to allege misdemeanor as distinguished from felony.

An affidavit, based on Acts 1923, c. 34, § 1, charging accused with having transported intoxicating liquor in automobile, held not to charge a misdemeanor as defined in chapter 23, § 1, as distinguished from the felony it alleged as defined in chapter 34 of such acts.

by statute in Indiana. Section 237, Burns' 1914 (section 237, R. S. 1881). And an indictment is only required to set out "a statement of the facts constituting the offense in plain and concise language without unnecessary repetition." Section 2040, Burns' 1914 (section 1731, R. S. 1881). The statute under which appellant was prosecuted and convictnot use the word "feloniously" in defining the offense forbidden, nor necessarily imply that the act prohibited must be done with felonious intent in order to be criminal. The affidavit described the alleged offense in the language of the statute, and that was sufficient. Asher v. State (Ind. Sup.) 142 N. E. 407; Id. (Ind. Sup.) 143 N. E. 513; Volderauer v. State (Ind. Sup.) 143 N. E. 674.

[2] Appellant further insists that said act of 1923, supra, is void because it does not designate the place where a person shall be imprisoned who violates it. The act recites that any person who shall transport intoxicating liquor in any automobile or other vehicle "shall be guilty of a felony, and upon conviction shall be imprisoned not less than one year or more than two years, and fined," etc. Another statute enacts that

"In all cases of felony tried before any court or jury in this state, if the defendant, being a

male person, be found guilty of any crime other than treason or murder, it shall be the duty of the court or jury to further find whether he is over 16 and less than 30 years of age. * * * between such ages ** the court

If

* shall sentence him to the custody of the board of managers of the Indiana reformatory, to be confined in said reformatory, or at such other place as may be designated by such board where he can be safely and properly

Appeal from Circuit Court, Pike County; cared for," etc. Sections 2151, 9907, Burns' John F. Dillon, Judge.

Henry Simpson was convicted of trans

porting intoxicating liquor in an automobile,

and he appeals. Affirmed.

1914 (section 275, c. 169, Acts 1905, p. 644; section 8, c. 53, Acts 1897, p. 73).

where appellant should be imprisoned. The law sufficiently designated the place

No error was committed in overruling the

Oscar Lanphar, of Princeton, for appel- motions to quash the affidavit and in arrest

lant. U. S. Lesh, Atty. Gen., for the State.

of judgment.

There was undisputed evidence that ap

(146 N.E.)

pellant and three other men rode in a Ford sedan automobile from Princeton, in Gibson county, across Pike county to a point east of Jasper, in Dubois county, and then drove back across Pike county; that one of the other men owned the car and drove it, and appellant rode in the back seat; that they had a quart bottle of whisky when they started, and drank it as they rode along. Appellant testified that on the road east of Winslow, at a point shown by undisputed evidence to be in Pike county, the bottle was passed from hand to hand, and each of them, including appellant, carried it in his hand and drank from it as they rode along and emptied it; that the empty bottle was then thrown away. Other witnesses testified without dispute that in Dubois county some members of the party bought a gallon of whisky in a jug and a quart in a bottle, and that they returned into and for eight miles through Pike county, until the automobile ran against a tree when just past Winslow; that the jug, almost full of whisky, and the bottle partly full, were thrown from the car, and were found near it; and that appellant and his companions were badly intoxicated when persons attracted by the accident arrived on the scene. Witnesses also testified that appellant and another of the party bought three quarts of the whisky obtained in Dubois county, and that the driver of the car bought and paid for only one-half gallon, and that appellant and his said companion carried the jug and bottle in the back part of the car with them, except as the liquor was passed around for each to drink, and that each drank from the jug and bottle in Pike county on the way back. But defendant and his witnesses denied that he bought any liquor or that he drank any on the way home, and said that the jug and bottle stood between the two parts of the divided front seat on the return trip.

[3, 4] Appellant asked two instructions to the effect that one of the material averments of the affidavit was that defendant was the owner and in possession of intoxicating liquor, and the other that he was transporting it in an automobile. These were properly refused. The statute does not require the accused to own or be in possession of the liquor in order to be guilty. And, if appellant knowingly transported or assisted to transport intoxicating liquor in an automobile, proof that it belonged to another who went along in charge of it would not show him to be innocent of the offense for which he was on trial.

If he knowingly helped to transport it, by caring for the bottle and jug in the back seat, to keep them from breaking, he would be equally guilty with the owner of the liquor and the owner of the car, even though he had no interest in either. Any person who has aided in the commission of a felony may be prosecuted and convicted in the same manner as if he were a principal. Section 2095, Burns' 1914 (section 224, c. 169, Acts 1905, p. 633).

[5, 6] Appellant complains of the refusal to give an instruction to the effect that the affidavit charged only a misdemeanor, under Acts 1917, c. 4, § 4, as amended by Acts 1921, c. 250, § 1, and chapter 23, Acts 1923, p. 70, § 1. What was said above sufficiently disposes of this point. Other propositions of law in the instructions asked were sufficiently covered by the instructions given.

[7] Appellant complains of an instruction which referred to proof that defendant drank intoxicating liquor from a bottle while riding in an automobile as one of the items of evidence tending to prove that he was guilty of the offense charged, insisting that one riding as a guest of the owner of an automobile, who was driving it, would not be guilty of transporting intoxicating liquor by reason of the mere fact that he took a drink from a bottle of whisky when it was passed to him. But we do not think appellant was harmed by the instruction under consideration. Its general purport was a direction that, if the defendant rode in an automobile in Pike county in which intoxicating liquor was being transported, and, with knowledge of that fact while so riding, exercised control over the liquor, he was guilty of the offense charged; the reference to his drinking being merely incidental. And the evidence set out above so clearly established appellant's active participation in the attempt to carry a quantity of whisky across Pike county in an automobile that this court is not justified in reversing the judgment because of a slight inaccuracy in an instruction, where it is obvious that the result must have been the same if the instruction had been wholly correct.

[8] The motion to modify the judgment was based upon the contention that the affidavit charged only the commission of a misdemeanor, as defined by Acts 1923, p. 70, supra, and not of the felony defined at page 108 of said acts. For reasons stated above, this contention cannot successfully be maintained.

The judgment is affirmed.

« ForrigeFortsett »