Cole v. State

• Decision Date: 26 November 1907
• Docket Number: No. 21,011.,21,011.
• Citation: 82 N.E. 796,169 Ind. 393
• Parties: COLE v. STATE.
• Court: Indiana Supreme Court

169 Ind. 393

82 N.E. 796

COLE

v.STATE.

No. 21,011.

Supreme Court of Indiana.

Nov. 26, 1907.

Appeal from Circuit Court, Washington County; Thomas B. Buskirk, Judge.

Johnnie Cole was convicted of trespass, and he appeals. Reversed and remanded.

Fippen & Fippen, for appellant. James Bingham, Atty. Gen., and White, Dowling & Cavins, for the State.

JORDAN, J.

Appellant was prosecuted upon an affidavit for having violated the provisions of section 388, c. 169, p. 670, Acts 1905, by unlawfully trespassing on certain described lands situated in Washington county, Ind., and owned by one Frank A. Bundy. He unsuccessfully moved to quash the affidavit. Upon his plea of not guilty, he was tried by a jury and a verdict returned, finding him guilty as charged and assessing his punishment at a fine of $5. He moved in arrest of judgment and for a new trial. These motions the court overruled, and rendered judgment on the verdict. Appellant appeals, and the only error assigned is the overruling of the motion to quash the affidavit.

The argument advanced by counsel to show that the trial court erred in denying the motion to quash is that the affidavit does not contain the indorsement of the prosecuting attorney, “approved by me,” as required by section 119 of the act concerning public offenses. Acts 1905, pp. 584, 611, c. 169; Burns' Ann. St. Supp. 1905, § 1760. An examination of the affidavit as it appears in the record verifies the contention of counsel for appellant in respect to the indorsement thereon, for there is an entire absence of the indorsement by the prosecuting attorney as required by section 119, supra. Section 118 of the statute in question provides that “all public offenses, except treason and murder, may be prosecuted in the circuit or criminal court by affidavit filed in term time,” etc. Section 119 of the act reads as follows: “When any such affidavit has been made, as provided in the last section, the prosecuting attorney shall approve the same by indorsement, using the words ‘approved by me’ and sign the same as such prosecuting attorney and indorse thereon the names of all the material witnesses; after which such affidavit shall be filed with the clerk, who shall indorse thereon the date of such filing, and record the same as in the case of an indictment, as provided in section one hundred and thirteen of this act. Other witnesses may afterwards be subpœnaed by the state; but unless the names of such witnesses be indorsed on the affidavit at the time it is filed, no continuance shall be granted to the state on account of the absence of any witness whose name is not thus indorsed. And the record of such affidavit and the indorsement thereon, or a copy thereof certified to be a true copy by the clerk of the court, shall be sufficient evidence of the making and filing of such affidavit and the contents thereof; and the defendant may be tried upon such copy, all as provided in section one hundred and fifteen of this act in case of trial on copy of indictment.” By the change made under section 118, supra, in our Criminal Code, the Legislature intended thereby that the method authorized under the old Code of prosecuting a criminal offense on affidavit and information should be eliminated, and that all public offenses, except treason and murder, may be prosecuted alone upon affidavit. It was intended that such affidavit should be substituted as a pleading upon the part of the state for the information authorized by the old Code, and that it alone should perform all of the functions of an affidavit and information. It will be noted that section 119, supra, expressly or positively requires that the prosecuting attorney shall approve the affidavit by indorsement, using the words “approved by me,” and subscribe or sign his name to such approval, after which the affidavit shall be filed with the clerk...