Ard v. State

• Citation: 16 N.E. 504,114 Ind. 542
• Decision Date: 27 March 1888
• Docket Number: 14,188
• Parties: Ard et al. v. The State
• Court: Supreme Court of Indiana

16 N.E. 504

114 Ind. 542

Ard et al. v. The State

No. 14,188

Supreme Court of Indiana

March 27, 1888

Petition for a Rehearing Overruled May 17, 1888.

From the Montgomery Circuit Court.

The judgment is affirmed, with costs.

G. W Friedley, W. B. Herod and W. W. Thornton, for appellants.

L. T Michener, Attorney General, and J. H. Gillett, for the State.

OPINION

Howk, J.

On the 19th day of May, 1887, this prosecution was commenced upon the affidavit of one John Davenport, then filed before a justice of the peace of Montgomery county. This affidavit charged "that, at and in the county of Montgomery, and State of Indiana, on the 19th day of May, 1887, Oscar Ard and five other persons, whose names are to affiant unknown, did then and there unlawfully and wrongfully obstruct a certain highway, running north and south upon and over the section line dividing sections 17 and 18, in township 20 north, of range 4 west, in said county, by then and there unlawfully and wrongfully putting, building and erecting a fence and fence-posts upon and across said highway, contrary to the statute," etc. Upon the filing of such affidavit, the justice issued his warrant to the marshal of the city of Crawfordsville, commanding him to arrest Oscar Ard and the five unknown persons mentioned in such affidavit, which warrant was returned to the justice by such city marshal, with his endorsement thereon as follows: "I have arrested the within named Oscar Ard, and five others with him, believed by me to be the five persons intended, whose names were unknown, but who declare their names to be Richard Briniger, Marshall Steele, Hamilton Priest, Andrew J. Mitchell and David A. Brown, and have their bodies now in court, this 19th day of May, 1887." Defendants not being ready for trial, by agreement of the parties, the cause was continued until May 25th, 1887, and each of the persons arrested, and named in the marshal's return, entered into a recognizance, with surety, for his appearance before such justice on the day last named. On that day all the parties appeared before the justice, and upon the trial then had, defendants were each found guilty of the offence charged, and the justice rendered judgment against them for the fines assessed and costs.

From the judgment of the justice, defendants appealed to the circuit court of the county, where the cause was tried by the court, and they were each found guilty of the offence charged, and assessed with a fine in the sum of one cent; and over their motion for a new trial, judgment was rendered accordingly.

In this court, defendants have assigned a number of errors, and these we will consider in the same order in which their counsel have presented and discussed them in their exhaustive brief of this cause.

Counsel say: "The first question we present for the consideration of the court is the sufficiency of the warrant under which the defendants were arrested, and the sufficiency of the affidavit under which they were arraigned and tried. The defendants severally moved, before the justice of the peace trying the cause, to quash the warrant and to quash the affidavit; and those motions were severally renewed in the circuit court, overruled and exceptions taken." Each of these motions was in writing, and neither of them was filed when defendants were first brought before the justice. When they were first arrested and appeared before the justice, the first thing they did, as we have seen, was to apply for a continuance, and, that having been granted, to enter into recognizance, with surety, for their appearance before the justice on the day to which, by their agreement and on their application, the cause had been continued. On that day they appeared, and objected then, for the first time, to the sufficiency of the warrant issued by the justice, under which they were arrested, and to the sufficiency of the affidavit charging the offence, upon which affidavit the justice issued such warrant.

It is to be noted that defendant Oscar Ard did not join in the objections to the sufficiency of the warrant. But the other defendants, appearing and pleading in the same names which, on their arrest by the marshal, they declared to be their names, moved the justice in writing (1) "that the warrant issued in this case, as to them, be quashed and set aside, and that they be released from custody;" and (2) "that they be released from custody and be discharged from arrest." At the same time, and before the justice, all "the defendants, each for himself, separately and severally move the court to quash the affidavit filed herein against them." These motions having been overruled, the record proceeds as follows: "The defendants being duly arraigned, the defendant Oscar Ard, for plea to the affidavit, says he is not guilty as charged, and the other defendants (naming them) refuse to plead thereto; whereupon the court enters a plea of 'not guilty' for said defendants so refusing to plead." Upon the trial of the cause before the justice, defendants were found guilty of the offence charged, and were each fined in the sum of one dollar, and the justice rendered judgment accordingly for such fines and the costs of prosecution. From this judgment defendants appealed to the circuit court of Montgomery county, and each of them gave bond, with surety to the approval of the justice, for his appearance before such circuit court on the first day of the next ensuing term thereof.

Defendants appeared in the circuit court and there renewed their written motions, theretofore filed before the justice of the peace, to quash the warrant issued by such justice, and for the discharge of the defendants, except Oscar Ard, from arrest and custody, and to quash the affidavit filed before the justice.

These motions were overruled by the court below, and these rulings are complained of here as errors. It may be conceded that the warrant issued by the justice did not authorize the city marshal to arrest or hold in custody any of the defendants, except Oscar Ard, and that if the defendants, other than Ard, upon being brought before the justice on the day of their arrest, had then moved for their release from custody and their discharge from arrest, under such warrant, and had renewed their motion thus made upon their appeal to the circuit court, it would have been error to have overruled such motion. But it does not follow, by any means, from this concession, that the court below committed any available error in overruling defendants' motions, made at the time they were shown to have been made, to quash either the affidavit or warrant, or to discharge or release any of the defendants from arrest or custody. We are of opinion, indeed, that there was no such error in either of the rulings now under consideration as would authorize or require the reversal of the judgment below.

The affidavit charged the public offence which is defined in section 1964, R. S. 1881, substantially in the language of the statute, and was, therefore, sufficient. Howard v. State, 87 Ind. 68; State...