Boswell v. State

• Decision Date: 23 January 1857
• Parties: Boswell and Others v. The State
• Court: Indiana Supreme Court

8 Ind. 450

Boswell and Others v. The State

Supreme Court of Indiana

January 23, 1857

From the Tippecanoe Court of Common Pleas.

The judgment is affirmed with costs.

G. A. Wood and D. P. Vinton, for appellants ^[1].

J. L. Miller, for the State ^[2].

OPINION

Per Curiam.

Information for malicious trespass. Trial by jury, verdict guilty, and judgment.

The errors assigned are--

1. In overruling the motion to quash.

The affidavit and information allege that the defendants unlawfully, maliciously, and mischievously did injure and cause to be injured, a sign, the property of, etc., of the value of 16 dollars, to the damage of the proprietor, 16 dollars.

The phrase, "injured and caused to be injured," is not objectionable. State v. Kuns, 5 Blackf. 314. The phraseology was the same in that case, and was held good in an indictment under the old practice.

It is probable that the description of the offense is too vague, as in State v. Aydelott, 7 Blackf. 157. But as the defendant pleaded over, and did not except to the opinion of the Court, overruling the motion to quash, the record does not present anything in that behalf to be considered. Hornberger v. State, 5 Ind. 300; Leyner v. State, ante, p. 490.

2. The second error is, that every order made by the Court against the defendant was erroneous.

This is too vague to meet the requirement of the statute. The errors must be specially assigned. 2 R. S. p. 161; Independence, etc., Co. v. Doty, 7 Ind. 580; Kimball v. Sloss, 7 Ind. 589; Riley v. Murray, ante, p. 354.

3. That the Court erred in overruling the motion for a new trial.

The evidence is not in the record. We must presume the ruling of the Court in that behalf correct. Mansur v. Indianapolis, etc., Plankroad Company, ante, p. 487.

The judgment is affirmed with costs.

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Notes:

^[1]Counsel for the appellants cited State v. Aydelott, 7 Blackf. 157; State v. Miles, 4 Ind. 577.

^[2]Counsel for the State cited State v. Merrill, 3 Blackf. 346; State v. Kuns 5 Blackf. 314; State v. Slocum, 8 Blackf. 315; Read v. State, 1 Ind. 511.

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