Cole v. The State
| Citation | 82 N.E. 796,169 Ind. 393 |
| Decision Date | 26 November 1907 |
| Docket Number | 21,011 |
| Parties | Cole v. The State |
| Court | Supreme Court of Indiana |
From Washington Circuit Court; Thomas B. Buskirk, Judge.
Prosecution by the State of Indiana against Johnnie Cole. From a judgment of conviction, defendant appeals.
Reversed.
J. M Fippen and Frank B. Fippen, for appellant.
James Bingham, Attorney-General, A. G. Cavins, E. M. White and H M. Dowling, for the State.
Appellant was prosecuted upon an affidavit for having violated the provisions of § 388 of the act of 1905 (Acts 1905, pp 584, 670, § 2280 Burns 1908), by unlawfully trespassing on certain described lands situated in Washington county, Indiana, and owned by 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 appealed, 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 § 119 of the act concerning public offenses (Acts 1905, pp. 584, 611, § 1990 Burns 1908. 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 § 1900, supra. Section 118 of the act in question (§ 1989 Burns 1908) 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 1990, supra, reads as follows:
By the change made under § 1989, supra, in our criminal code, the legislature intended 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 upon affidavit alone. 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 § 1990, supra, expressly 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 of the court, who shall indorse thereon the date of the filing, and record the same as in case of an indictment, as provided by § 113 of the act (Acts 1905, pp. 584, 610, § 1984 Burns 1908). It is further provided that the record of such affidavit, and the indorsement thereon (that is, the record made by the clerk under § 1984, supra), or a copy thereof certified to be a true copy by the clerk, shall be sufficient evidence of the making and filing of the affidavit and the contents thereof. 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...
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