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Burk v. The State.

tion, shall be deemed guilty of perjury, and, upon conviction thereof, shall be imprisoned in the State prison,” etc.

In section 173 of the criminal code of 1881 (section 1747, R. S. 1881), it is provided as follows: “In an indictment or information for perjury or subornation of perjury, it shall only be necessary to set forth the substance of the controversy or the matter in respect to which the crime was committed, and in what court or before whom the oath alleged to be false was taken, and that the court or person before whom it was taken had authority to administer it, with the proper averments to falsify the matter whereof the perjury may be assigned, without setting forth any part of any record or proceeding or the commission or authority of the court or other authority before which the perjury was committed.”

With these statutory provisions before us, we will briefly consider and decide the points made by the appellant's counsel in discussing the alleged error of the trial court in overruling the motion to quash the indictment. It is claimed by counsel that the indictment is insufficient, because it does not allege that any complaint was filed before the justice, Armstrong, and does not show how the issue was formed or how the case got before the justice; and many decisions of the courts of last resort in other States are cited, for the purpose of showing that such allegations were necessary to the sufficiency of the indictment. We deem it unnecessary for us to consider the cases cited, for, upon the points under consideration, the statute of this State expressly declares that, in an indictment for perjury,“it shall only be necessary to set forth the substance of the controversy or the matter in respect to which the crime was committed.” Under this statutory provision, it was wholly unnecessary, we think, that the indictment should allege that a complaint was filed before the justice, or show how the issue was formed, or how the case got before the justice. It will be seen from the indictment, the substance of which we have given, that it did set forth the substance of the controversy in respect to which the crime was

Burk v. The State.

committed, and this was all that was necessary under the statute.

It is further claimed by appellant's counsel that the indictment is bad, because it does not allege that the trial was before Justice Armstrong and a jury; but, by reference to the indictment, it will be seen, as we think, that this fact is alleged with sufficient certainty. Counsel also complain of the grammatical construction of the indictment, and of the many lines that intervene between the noun and the verb; but, if it were conceded that their criticism, in this respect, were well founded, we do not think that it would afford any sufficient ground for quashing the indictment. For, notwithstanding the defect complained of, we are of the opinion that the indictment states the offence charged with sufficient certainty.

Again, the appellant's counsel say, “The indictment must allege that the testimony was material, not that it became a material question, but that the testimony given was material; and the indictment must show that the testimony given was material. There is no allegation that the testimony given by defendant was material to the issue or point in question.” If counsel claim that the indictment was bad, because it did not allege, in so many words, that the testimony given by defendant was material, we do not think that such claim is well taken, or can be sustained. It must appear from the indictment that the testimony given was, in the language of the statute defining the offence, "touching a matter material to the point in question ;” but certainly it was not necessary that the indictment should allege, in express terms, that the testimony given was material to the point in question. For such an allegation would be nothing more than the mere statement of an inference or conclusion, deduced from the testimony given, and not the statement of a faet forming a constituent part of the offence charged. Under the criminal code of this State, an indictment must contain “a statement of the facts constituting the offence," and not of inferences or conclusions, whether of

Burk v. The State.

law or of fact. Crim. Code of 1881, section 157; section 1731, R. S. 1881; Howard v. The State, 67 Ind. 401.

Many other objections are urged in argument, by the appellant's counsel, to the sufficiency of the indictment in this case; but these objections seem to us to have reference solely to the supposed uncertainty of the indictment, in charging the offence. Without examining these objections separately, we may say generally that we are of the opinion, under the

provisions of the statutes of this State bearing upon the offence charged and the description thereof, the indictment was sufficient. The offence charged, and the facts constituting the same, were set forth with sufficient clearness, and with such a degree of certainty that the court could pronounce judgment, upon a conviction, according to the right of the case, and we have not found any such defect or imperfection in the indictment as would tend even, in our opinion, to the prejudice of the substantial rights of the appellant upon the merits.

Our conclusion is, therefore, that the court committed no error in overruling the appellant's motion to quash the indictment.

2. Did the trial court errin sustaining the State's demurrer for the want of sufficient facts, to the appellant's plea in bar of this prosecution ? In this plea, the appellant alleged in substance, that the State of Indiana ought not further to prosecute the indictment in this case, because he said that theretofore, to wit, at the circuit court begun and held at the courthouse, in Crawfordsville, in said Montgomery county, the appellant was put upon trial, upon an indictment found by the grand jury of said county, and in the indictment upon which he was tried, it was alleged that, at and in the county of Montgomery, and State of Indiana, the appellant did feloniously, wilfully, corruptly and falsely swear upon oath, that he did, at the city of Crawfordsville, Indiana, see Andrew J. McMaken, in his presence, buy the cattle charged to be stolen, of John Miller, on the 13th day of August, 1881, between the hours of two and five o'clock P. m., and then and there pay

Burk v. The State.

the said John Miller a sum of money on the purchase price of said cattle, between Joel's clothing store and Gregg's hardware store, in the city of Crawfordsville, Indiana ; and it was alleged in the indictment he was then tried upon, that said facts were not true, and that appellant was guilty of perjury. And the charge of perjury in the indictment, that appellant was tried upon, was the same language, in substance and effect, as is charged in this indictment, and was in substance the same negation as the negation in the indictment in this case; and the State introduced in evidence, and relied for a conviction on the same evidence that the State will introduce in this

case, and all the same facts and circumstances were introduced in evidence, and the State sought to convict the appellant in that case, and upon the charge he was tried on, by the same evidence the State will introduce in this case ; that, upon the trial of the other case, the appellant objected to and protested against the State using said evidence, and the court held said evidence competent, and allowed it all to go to the jury, and the State put all of the evidence it will use in this case before the jury in the other case, and all of the same facts, circumstances, witnesses, transactions and statements were introduced in evidence against the appellant; and he was compelled to go through the said trial and defend himself upon the same facts, circumstances and transactions charged in the indictment in this case,

and he met the same witnesses and the same evidence, the same charge and the same evidence, on the other trial, and he objected, protested and excepted to the facts, evidence and circumstances being introduced against him, but the court ruled it proper, and put him upon the trial of the same evidence and circumstances mentioned in this case. Said trial took place at the February term of the Montgomery Circuit Court, and on the 21st day of February, 1882, the jury in said other case returned a verdict of not guilty, and which judgment is in full force and effect, and unreversed. And the appellant said, that he was the same Nelson Burk that was so tried and acquitted, and the same facts and cir

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Burk v. The State.

cumstances were put in evidence upon the cause he was tried and acquitted upon, and the State proved that he was sworn and testified to the same facts, circumstances and transactions, as stated in the indictment in this case, and proved it on the 27th day of October, 1881, and did not elect to prosecute him for any particular time, but put all the evidence in this case before the jury on the other trial, and he was duly acquitted, and the same charge, same facts and same statements were all put in evidence in said former case, and the charge upon which he was tried and acquitted was for stating, in substance and in effect, the same words that he was charged with stating in the indictment in this case. And this the said Nelson Burk was ready to verify. Wherefore the appellant prayed judgment, if the State ought to further prosecute the said indictment against him, in respect of the said offence therein mentioned, and that he might be dismissed and discharged from the said indictment.

We are of the opinion, that the facts stated in the appellant's plea were sufficient, if true, and the demurrer of the State concedes their truth, as they seem to be well pleaded, to constitute a good plea of former acquittal on another indictment, charging him with the commission of the same crime for which he was prosecuted in this case. The plea states, with sufficient certainty, as it seems to us, the identity of the felony charged in the indictment, in the case at bar, with that charged in the indictment, in the former case, whereof, it was alleged, the appellant was acquitted. If the plea be true, the appellant had been indicted in a court of competent jurisdiction, and tried and acquitted of precisely the same felony wherewith he stands charged in the indictment, in this case, and if these facts existed section 14 of the Bill of Rights forbade that he should " be put in jeopardy twice for the same offence.” If these facts did not exist, the State should have joined issue on the appellant's plea in bar. Clem v. The State, 42 Ind. 420; The State v. George, 53 Ind. 431; Brinkman v. The State, 57 Ind. 76; Bryant v. The State, 72 Ind. 400. In the case last cited, it was said: “The law does not, and this

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