Bottorff v. State

Willoughby, J, This is a prosecution by grand jury indictment in one count charging appellant with the forgery of a check. The prosecution is based on §2946 *542 Burns 1926. The appellant filed a motion to quash the indictment, which motion was overruled by the court and to which ruling, appellant at the time excepted. Appellant was then arraigned, pleaded not guilty and filed a motion for change of venue from Lawrence county, which motion was overruled and exceptions taken by • appellant. There was a trial by the court without a jury. The trial commenced February 11, 1926, and was completed on February 15, 1926. The court finding appellant guilty of forgery as charged and fixing his punishment at a fine of $10 and imprisonment in the Indiana reformatory for a period of not less than two years nor more than fourteen years. Judgment was rendered on this finding February 15, 1926. On the same date, the appellant filed his written verified motion for a new trial, which motion was on the same date overruled by the court, and exceptions taken. From this judgment, an appeal is prosecuted and the alleged errors relied on for reversal are: (1) The court erred in overruling appellant’s motion to quash the indictment; (2) the court erred in overruling appellant’s motion for a new trial. The caption.of the indictment is as follows: State of Indiana Lawrence County SS: Lawrence Circuit Court, September Term 1925. State of Indiana v. Otis Bottorff. Indictment for forgery. The formal part of the indictment shows that the indictment was by the grand jurors of Lawrence county in the State of Indiana. That the jury was composed of good and lawful men duly and legally impaneled, charged and sworn to inquire into felonies and certain misdemeanors in and for the body of said county of Lawrence in the name and by the authority of the State of Indiana. And proceeds to charge that one Otis Bottorff, on July 16, 1925, at said county and state aforesaid, did then and there feloniously, unlawfully, *543 falsely and fraudulently make, forge, and counterfeit a certain check purporting to have been made and executed by one Frank Early to Walter Henderson for the payment of a sum of money to wit: $48 To said Walter Henderson, which said false, forged, and counterfeit check is of the following tenor, viz: No-Bedford, Indiana, July 17, 1925. The Bedford National Bank 71240. Pay to the - order of Walter Henderson $48, Frank Early. Endorsement, Walter Henderson, with the intent, then there, and thereby feloniously, falsely, and fraudulently to defraud the said Frank Early. The statute, §2227 Burns -1926, provides that: The defendant may move, to quash the indictment or affidavit when it appears upon the face thereof either: First. That the grand jury which found the indictment had no legal authority to inquire into the offense charged. 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 justification of the offense charged, or other legal bar to the prosecution. Fourth. That the indictment or affidavit does not state the offense with sufficient certainty. The statue specifies the grounds available for a motion to quash an indictment and nothing outside of the grounds specified is available. Jackson v. State (1918), 187 Ind. 694, 121 N. E. 114; Katzen v. State (1922), 192 Ind. 476, 137 N. E. 29. Irregularity in the selection, impaneling or swearing of the grand jury cannot be presented by a motion to quash the indictment, but such objection must be pleaded in abatement. Jackson v. State, supra; Katzen v. State, supra. *544 *543 Motions to quash indictments only reach matters apparent on the face thereof. Donahue v. State (1905), *544 165 Ind. 148, 74 N. E. 996; Pittsburgh, etc., R. Co. v. State (1912), 178 Ind. 498, 99 N. E. 801; Jackson v. State, supra; Williams v. State (1919), 188 Ind. 283, 123 N. E. 209. An examination of the indictment in this case shows that the indictment is based upon §2946 Burns 1926,. and the description of the offense charged is in conformity with the offense described in said section of statute. The indictment, therefore, states a public offense and it does not contain any matter which, if true, will constitute a legal justification of the offense charged, or other legal bar to the prosecution. Appellant says that the indictment is bad for duplicity, but he does not point out in what that duplicity consists, and the statements in the indictment are sufficient to describe the offense with certainty. None of the objections raised to the indictment appear upon the face of it. It is not charged in the indictment that the indorsement was a forgery, but a forgery of the check could be complete without a forgery of the indorsement. As to the returning of the indictment by the grand jury of Lawrence county to the Lawrence Circuit Court, the matter is fully covered by the statement in the formal part of the indictment. The Lawrence . Circuit Court is a court of general jurisdiction and it does, not appear from the record in this case that anything in regard to the return of the indictment was illegal. The presumption of this court is that the trial court was correct. The record shows an indictment purporting to have been returned by a legal grand jury and no question can be raised by the motion to quash as to whether the members of the grand jury were duly and legally charged and sworn. Harris v. State (1900), 155 Ind. 265, 58 N. E. 75; Katzen v. State, supra; §2225 Burns 1926. We find nothing in the record which would warrant *545 quashing the indictment on account of the infirmities alleged against it. The only other question raised is on the motion for a new trial and the only question raised on that motion is the sufficiency of the evidence to sustain the finding of the court. It is argued by appellant that certain witnesses for the state had a bad reputation and that they were, on account of such reputation, and, on account of their associates, unworthy of belief, and that the testimony of the witnesses for the defendant should be taken because these witnesses were of good standing and of good character. It was within the province of the jury to determine what evidence they would believe and what weight they would give it, and where the evidence is contradictory, as in this case, this court will not disturb the verdict where there is some evidence to sustain every material fact necessary to sustain the verdict. The same rule applies to trials by the court without a jury. There is some evidence to sustain every material fact alleged in the indictment. It is argued by the appellant that the evidence for the state, if it shows any guilt on his part, shows that he was not the principal but was only an accessory before the fact to the commission of the crime. That is wholly immaterial in the determination of this case because, by the provision of our statutes, an accessory before the fact, may be indicted as a principal and tried as a principal. §2028 Burns 1926. Appellant further charges that the court erred in ruling upon certain questions asked the various witnesses for the state but there is no place in the brief pointing oat what objection existed to such testimony and, under Rule 22 of this court, the failure of the appellant to point out these objections is a waiver and the court will not search the record to ascertain whether *546 or not any error was committed in accepting or rejecting such evidence. Barksdale v. State (1925), 196 Ind. 392, 147 N. E. 765; Bray v. Tardy (1914), 182 Ind. 98, 105 N. E. 772. In Kaufman v. Alexander (1913), 180 Ind. 670, 103 N. E. 481, it is held that errors not mentioned or discussed in appellant’s brief under propositions or points as required by clause 5 of Rule 22 of the Supreme Court, are waived. No error appearing in the record, the judgment is affirmed.