State v. Brumfiel

125 N.E. 40, 188 Ind. 584, 1919 Ind. LEXIS 84

Opinion

Harvey, J.

— Appellee was acquitted, by a directed verdict, of a charge, by indictment, of unlawfully receiving compensation from the county in addition to his salary as a county commissioner. The state presents reserved questions of law.

The state complains that the court refused to allow in evidence an instrument purporting to be the claim by appellant against the county, and, further, so refused an instrument purporting to be the warrant received in payment of said claim.

1. The claim is objected to because it reads for “expense,” and thus, on its face, shows that it is not for compensation for services which the defendant was obligated to render as county commissioner. The state offered to follow with evidence explaining that defendant had not incurred, personally, any expense in reference to any of the roads mentioned in the claim, and that the same was to compensate defendant for his time and services as a commissioner, and that defendant had so stated, and, further, that the claim was allowed and paid. Defendant was charged with presenting an unlawful claim. The mere verbiage of the claim cannot, in view of the offer of explanatory evidence, foreclose the charge in the indictment. If the claim was unlawful, the wording of the same may have been intended as a cover for its illegality. The same was subject to such explanation. The objection should have been overruled.

The warrant when identified and marked as an exhibit was offered in evidence. Defendant, after preliminary examination of the witness, and thereby showing that the letters in the face of the warrant, to wit, “G. R. C. Fund,” mean “gravel road construction or expense fund,” objected and stated substantially the same ground as stated in objection to the claim. The objection should have been overruled.

2. Appellant’s further complaint is that the court erred in refusing to permit a witness, who was a member of the grand jury which returned the indictment against defendant, to repeat what defendant, who had been subpoenaed as a witness before the grand jury, had stated to the grand jury, the purpose being to show that defendant admitted that the claim was not for expenses he had personally incurred; the purpose not being to thereby convict defendant of perjury upon a trial of defendant on'a charge of perjury; nor to ascertain whether the later testimony of the witness was consistent with his testimony before the grand jury.

The objection of defendant should have been overruled. Hinshaw v. State (1896), 147 Ind. 334, 47 N. E. 157, and cases cited.

As stated in appellant’s brief, all other points made are covered by the rules above announced.

The appeal is sustained at the costs of appellee as to the appeal.

Note. — Reported in 125 N. E. 40.