Davy v. State

• Decision Date: 04 January 1923
• Docket Number: 24,115
• Citation: 137 N.E. 553,192 Ind. 604
• Parties: Davy v. State of Indiana
• Court: Indiana Supreme Court

137 N.E. 553

192 Ind. 604

Davy v. State of Indiana

No. 24,115

Supreme Court of Indiana

January 4, 1923

From Parke Circuit Court; Henry Daniels, Judge.

Prosecution by the State of Indiana against William Davy. From a judgment of conviction, the defendant appeals.

Reversed.

Holmes & McCallister, for appellant.

U. S Lesh, Attorney-General, and Mrs. Edward Franklin White, for the state.

OPINION

Townsend, J.

Appellant was tried by the court and convicted of violating the Prohibition Law. (§ 8356a et seq. Burns' Supp. 1921, Acts 1917 p. 15.) The affidavit on which he was tried did not bear the endorsed approval of the prosecuting attorney as required by § 1990 Burns 1914, Acts 1905 p 584, § 119. Appellant moved to quash the affidavit. The overruling of this motion is the sole error claimed.

Appellant cites and relies on Cole v. State (1907), 169 Ind. 393, 82 N.E. 796, which is squarely in point. In that case the question here presented was fully considered and the various provisions of the Criminal Code on this subject reviewed, and it was there 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 deputy attorney-general asserts that the affidavit here in question was signed and sworn to by the individual who is the prosecuting attorney. Neither the face of the affidavit, nor the jurat, discloses that the one who swore to the affidavit is the prosecuting attorney. It is asserted by the state that this court will take judicial notice of who is prosecuting attorney in a judicial district. If this should be granted we could not infer that the name subscribed to the affidavit represents the identical person who, as prosecuting attorney, was served with notice of appeal. The deputy attorney-general says that it would be a reproach to the law to reverse this cause and put the state to the expense of retrial. We think not. We prefer to leave the reproach where it belongs, and where Cole v. State, supra, puts it. It was there said: "His (prosecuting attorney's) neglect or failure to discharge a plain and important official duty certainly renders him deserving of...