Brogan v. State
| Decision Date | 10 May 1927 |
| Docket Number | No. 25247.,25247. |
| Parties | BROGAN v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Starke Circuit Court; Wm. C. Pentecost, Judge.
Albert Brogan was convicted of burglary in the second degree, and he appeals. Reversed with instructions.William J. Reed, of Knox, for appellant.
Arthur L. Gilliom, Atty. Gen., and Harry L. Gause, Deputy Atty. Gen., for the State.
This is an appeal in a criminal case, in which the only question presented is the sufficiency of the amended affidavit, upon which appellant was prosecuted and convicted of burglary in the second degree. Same, omitting the formal parts, reads as follows:
“The undersigned affiant (E. D. Baker), being first duly sworn, upon oath says that on or about the 22d day of May, 1926, at and in the county and state aforesaid, one Albert Brogan did then and there unlawfully, feloniously, and burglariously, in the nighttime, break and enter into four railroad cars, the numbers being PFE-11038, SRL-16891, NADX-1984, PFE- 20794, of the New York, Chicago & St. Louis Railroad Company, then and there situate, with intent then and there feloniously and burglariously to take, steal, and carry away the goods and chattels, in the possession of and consigned for transfer to the New York, Chicago & St. Louis Railroad Company then and there being, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Indiana.”
Appellant's motion to quash the amended affidavit was overruled. The crime charged is defined in section 2, c. 165, Acts 1915 (section 2447, Burns' 1926).
[1][2] It is claimed by appellant that the amended affidavit alleged four distinct offenses, and therefore was bad for duplicity. An indictment or affidavit is not bad for duplicity for joining in one count, as one offense, offenses committed at the same time, by the same person, as parts of the same transaction, and subjecting defendant to the same punishment. Davis v. State (1884) 100 Ind. 154. In State v. Paul (1891) 81 Iowa, 596, 47 N. W. 773, it was held that an indictment for trespass that charged the accused with cutting down and carrying away growing trees from two separate tracts of land, the property of persons named, was not bad as charging two separate offenses, if the cutting upon both tracts was a single transaction. In Furnace v. State (1899) 153 Ind. 93, 54 N. E. 441, it was said that an information charging that defendant at a time and place named “did then and there unlawfully and feloniously steal, take and carry away of the personal goods and chattels of Jane Engle $5 in money, and the personal goods and chattels of Samuel Engle, $4.50 in money,” etc., was not bad for duplicity, as it prima facie disclosed that the larceny occurred at the same time and place and constituted but a single transaction. In deciding that case, this court stated that the necessary import of the words “then and there,” as employed in the information, was that the larceny of the money, part of which belonged to one person and part to another, occurred at the same time and place, and constituted but a single transaction. The words “then and there” are used in the amended affidavit under consideration, and must be taken to mean that the breaking and entering into four railroad cars occurred at the same time and place and was a single transaction. In Knopf v. State (1882) 84 Ind. 316, cited by appellant, the court said:
“When several acts relate to the same transaction, and together constitute but one offense, they may be charged in the same count, but not otherwise.”
[3] The cases relied upon by appellant do not sustain his position when applied to the facts stated in the amended affidavit. Same was not bad for duplicity. It is insisted by the appellant that the amended affidavit did not state the offense with sufficient certainty, as it did not contain facts to show whether the railroad cars were open or closed cars. The statute under which appellant was convicted provides that whoever in the nighttime or daytime breaks and enters into various named structures, one of which is “railroad car,” with intent to commit a felony, shall be deemed guilty of the crime of burglary in the second degree. In Ewing v. State (1921) 190 Ind. 565, 131 N. E. 43, an affidavit which charged appellant with burglarizing a freight car belonging to a named railroad company was held to allege every fact necessary to show a violation of the act which defines burglary in the second degree. The amended affidavit in describing the places broken and entered into followed the language of the statute in charging the offense, and was sufficient in that particular.
[4] It is also insisted by the appellant that the amended affidavit was not approved by the prosecuting attorney, and, because of that defect, the motion to quash should have been sustained. The record shows, after the signature of the maker to said affidavit, the following: It does not appear that same was approved by the prosecuting atorney. When an affidavit has been made as provided by statute, the prosecuting attorney shall approve the same by indorsement, using the words “approved by me,” and sign the same as such prosecuting attorney. Section 119, c. 169, Acts 1905 (Acts 1905, p. 611); section 2151, Burns' 1926. An affidavit must be indorsed, “Approved by me,” and signed by the prosecuting attorney before filing, or it may be quashed. Cole v. State (1907) 169 Ind. 393, 82 N. E. 796;Robinson v. State (1912) 177 Ind. 263, 97 N. E. 929;Davy v. State (1923) 192 Ind. 604, 137 N. E. 553;Parish v. State (1923) 194 Ind. 44, 141 N. E. 786;Sabo v. State (1925) 197 Ind. 210, 150 N. E. 103. In Cole v. State, supra, this court said:
“The Legislature appears to have made the approval of the affidavit by the state's representative a condition or requirement preceding its filing with the clerk of the court and the recording thereof by the latter officer, and it can have no standing or effect as a pleading or document in the case until authenticated by the approval of the prosecuting attorney, as the law exacts.”
The regularity of filing an affidavit is tested by a motion to quash. Hoover v. State (1887) 110 Ind. 349, 11 N. E. 434. As the amended affidavit was not approved by the prosecuting attorney, it was error for the lower court to overrule the motion to quash same.
Judgment reversed, with instructions to sustain appellant's motion to quash the amended affidavit.
It is further ordered that the clerk of this court make and certify to the warden of the Indiana State Prison an order for the return of the appellant to the custody of the sheriff of Starke county.
I concur in the propositions of law stated in the main opinion but do not believe that Cole v. State (1907) 169 Ind. 393, 82 N. E. 796, as quoted from, and the other cases cited to the same point, are applicable here, first, because the prosecuting attorney's approval of the affidavit affirmatively appears from the record; and, second, because appellant has not been harmed by the alleged error. I therefore respectfully dissent from the judgment of reversal.
The purpose of the statute, requiring the prosecuting attorney to indorse the words “approved by me” on an affidavit charging a defendant with the commission of a crime (section 2151, Burns' 1926), is to prevent unauthorized prosecutions and to secure the sanction of the constituted legal authority. The prosecuting attorney here had notice of and approved this prosecution. The original affidavit after the signature of the affiant concludes:
“Subscribed and sworn to before me this 24th day of...
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