Opinion
No. 28, 477 and 28, 478.
Filed April 1, 1949.
1. INDICTMENT AND AFFIDAVIT — Requisites of Affidavit — Auto Banditry — Statutory Requirement of Felony at the Time — Omission of Essential Element of Larceny — Sufficiency of Affidavit. — Where affidavit alleging that defendants did "rob, take, steal and carry away" a safe belonging to affiant "by violence" under statutory offense of automobile banditry which is defined as an attempt to commit a felony while having a self-moving conveyance to use for escape, such affidavit was an attempt to allege larceny as the felony required by statute and such allegations were insufficient to constitute larceny, because of failure to allege the value of property taken. Burns' 1942 Replacement. § 10-4710. p. 200.
2. INDICTMENT AND AFFIDAVIT — Sufficiency of Accusation — Test by Motion to Quash and Motion in Arrest of Judgment — Defect in Manner or Form — Difference in Test. A material fact constituting the offense, if stated in a defective manner or form in the affidavit, may on motion to quash render the affidavit insufficient, while such defect on motion in arrest would be cured by verdict. p. 201.
3. INDICTMENT AND AFFIDAVIT — Sufficiency of Accusation — Motion in Arrest of Judgment — Technical Defects and Errors Are Disregarded — Deemed Cured by Verdict. — When an affidavit was first assailed by motion in arrest of judgment, mere technical defects or errors in such event would be disregarded, because they would be deemed cured by verdict. p. 201.
4. INDICTMENT AND AFFIDAVIT — Sufficiency of Accusation — Absence of Essential Averment — Motion in Arrest of Judgment Would Be Sustained. — Where affidavit charging statutory offense of automobile banditry failed to allege the value of the property taken, which was an essential element of the felony alleged in the affidavit, such affidavit would be bad on a motion in arrest of judgment, because of the entire absence of the essential averment. Burns' 1942 Replacement, §§ 9-2001, 10-4710. p. 201.
From the Union Circuit Court, Kenneth E. Copes, Judge.
William Pope and Sherman Lewis were convicted of automobile banditry, and from the overruling of motions in arrest of judgment and for new trial, they appeal.
Reversed with instructions to sustain the motions in arrest of judgment.
James B. Davidson, William E. McFeely, both of Richmond, Roberts Shepard, of Liberty, Moran Abromson, of Portland, for appellants.
Cleon H. Foust and J. Emmett McManamon, Attorneys General, Frank E. Coughlin, First Deputy Attorney General, Merl M. Wall, Deputy Attorney General, for appellee.
The appellants were charged jointly by affidavit with the alleged offense of automobile banditry under § 10-4710, Burns' 1942 Replacement.
They were tried jointly and were convicted. Judgment and sentence of imprisonment followed.
On appeal to this court they have assigned as error the overruling of their motions in arrest of judgment, and the overruling of their separate motions for a new trial.
That part of the affidavit material to the question presented by the motion in arrest of judgment charged the appellants as follows:
"John T. Petro being duly sworn upon his oath says that Sherman Lewis and William Pope on or about the 2nd day of October, 1947, at said County of Union and State of Indiana, did then and there unlawfully, and feloniously rob, take, steal and carry away of the goods and chattels of the Green and White Filling and Service Station, in the town of Liberty, Union County, Indiana, one safe and contents, then and there, belonging to said Green and White Service Station, by violence, and said Sherman Lewis and William Pope, at the said time and place, had on and near the premises whereon said unlawful act was so committed by them an automobile by the use of which they escaped and intended and attempted to escape, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Indiana."
The statute defining automobile banditry is as follows:
"10-4710 [2548]. Automobile banditry — Use of conveyance in escape or attempted escape. — If any person or persons shall commit or attempt to commit a felony, having at the time on or near the premises where such felony is attempted or committed, an automobile, motorcycle, airplane, or other self-moving conveyance, by the use of which he or they escape, attempt to escape or intend to escape, or having attempted or committed such felony, he or they seize an automobile, motorcycle, airplane, or other self-moving conveyance, by the use of which he or they escape or attempt to escape, he, they and each of them shall be guilty of automobile banditry, and, upon conviction thereof, shall be imprisoned in the state prison for any determinate period not less than ten (10) years nor more than twenty-five (25) years. [Acts 1929, ch. 54, § 3, p. 136.]"
The appellants' motion in arrest of judgment was on the statutory ground that the facts stated in the affidavit did not constitute a public offense under the laws of the State of Indiana. Counsel for appellants urge that the affidavit did not state a public offense because it failed to allege any value of the goods and chattels alleged to have been taken, and that the affidavit failed to show that said goods and chattels were taken from any person or persons, as required by law.
It is evident from the affidavit filed herein that the State was attempting to allege the felony of larceny, although the word "rob" is mentioned therein, and also that the crime was 1. committed "by violence." Certainly this could not be considered as an attempt to allege the crime of robbery. The prosecution attempted to prove larceny, but failed to allege any fact or facts which constituted or would show the value of the property taken so as to bring the affidavit under the allegation of larceny. Since the allegation of value is an essential element of the crime of larceny, it was necessary for the State to allege value in the affidavit filed in these cases. Burrows v. State (1894), 137 Ind. 474, 37 N.E. 271; State v. Perley et al. (1894), 86 Me. 427, 30 A. 74; People v. Silbertrust (1908), 236 Ill. 144, 86 N.E. 203.
In Chizum v. State (1932), 203 Ind. 450, 453, 180 N.E. 674, the appellant was convicted of automobile banditry in which robbery was the felony charged. The court said:
"In the instant case, robbery is designated as the felony committed and the facts constituting that offense must be stated in the affidavit."
The State contends that the motion in arrest of judgment is not the proper manner and means to present this question to the court, and that the same should have been presented by 2, 3. motion to quash. It has been held by this court that, while indictment or affidavit is not subject to the same test by motion in arrest as it is by motion to quash, yet, under § 9-2001, Burns' 1942 Replacement, the affidavit must, on motion in arrest, state facts sufficient to constitute a public offense. A material fact constituting the offense, if stated in a defective manner or form, may on motion to quash render the affidavit insufficient, while such defect on motion in arrest would be cured by verdict. This rule is applicable when an affidavit is first assailed by motion in arrest. Mere technical defects or errors in such event should be disregarded. However, in the affidavit here under consideration there is no attempt by averment, direct or indirect, defective, uncertain or otherwise, to charge the value of the property alleged to have been taken, and, consequently, we are not dealing with a defective or uncertain averment that would be cured by verdict, but with the entire absence of an averment. Woodsmall v. State (1913), 179 Ind. 697, 102 N.E. 130.
In Romary v. State (1945), 223 Ind. 667, 671, 64 N.E. 4. 2d 22, 23, the court said:
"But under § 9-2001, Burns', supra, if there is an entire absence of an essential averment in the affidavit, it is bad on a motion in arrest."
The court should have sustained the motion in arrest of judgment, and by not doing so committed reversible error.
For the error of the court in the matter herein indicated, the judgment of the circuit court is reversed, with instructions to sustain the motion in arrest of judgment in accordance with this opinion.
NOTE. — Reported in 84 N.E.2d 887.