Fisher v. The State

• Decision Date: 29 September 1891
• Docket Number: 487
• Citation: 28 N.E. 565,2 Ind.App. 365
• Parties: FISHER v. THE STATE
• Court: Indiana Appellate Court

28 N.E. 565

2 Ind.App. 365

FISHER v. THE STATE

No. 487

Court of Appeals of Indiana

September 29, 1891

From the Hamilton Circuit Court.

Judgment affirmed, with costs.

A. F Shirts and J. A. Kilbourne, for appellant.

A. G Smith, Attorney General, S.D. Stuart, Prosecuting Attorney and J. F. Neal, for the State.

OPINION

ROBINSON, J.

The affidavit and information in this case contain two counts. The first count charges the appellant with keeping a gaming-house.

The second count charges the appellant with renting a house to be used and occupied for gaming.

The appellant moved to quash the affidavit and each count in the information, which was overruled and exception taken.

The case was tried by a jury, resulting in a verdict finding the appellant guilty and assessing his fine at one hundred and fifty dollars. After judgment was rendered on the verdict of the jury, the appellant filed a motion for a new trial, which was overruled and exception taken.

The appellant discusses, in this court, the alleged error of the circuit court in overruling his motion to quash the second count of the affidavit and the second count of the information, and in overruling his motion for a new trial.

The affidavit was made by Frank Barnett. The second count reads as follows, to wit:

"Second Count. Frank Barnett further swears that William A. Fisher, on the 10th day of March, 1889, at the county of Hamilton and State of Indiana, and from that day to the making of this presentment, did unlawfully rent the room on the second floor in the east end of the two-story brick building situated on the north half of lot numbered six, in square numbered eleven, in the city of Noblesville, Indiana, to be used and occupied for gaming, he, the said William A. Fisher, then and there being the owner of said room, contrary to the forms of the statute," etc.

The second count in the information begins with the statement: "Frank Barnett further swears," etc., and then charges the appellant with renting a room in his house to be used and occupied for gaming, in the language of the second count of the affidavit, and concludes as follows: "As Frank Barnett has complained on oath, whose affidavit is herewith filed, contrary to the form of the statute, etc. Therefore, the prosecuting attorney prays the consideration of said court in the premises, and that a warrant be issued for the arrest of said William A Fisher, and that he be required to answer in the premises.

"S. D. STUART, Prosecuting Attorney."

It is contended by counsel for the appellant that the motion to quash the second count in the information should have been sustained because of the statement in the beginning of this count: "Frank Barnett further swears," etc.; These words do not necessarily mean that the information was not the official statement of the prosecuting attorney. The information, omitting the caption, commences as follows: "S. D. Stuart, prosecuting attorney," etc., "now gives the Hamilton Circuit Court to understand and be informed that William A. Fisher," etc., and concludes as heretofore shown. This objection, at most, amounts to a mere informality, and could not have possibly injured the appellant. Under section 1756, R. S. 1881, it is provided, among other things, that no indictment, or information, shall be quashed "For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits."

The informality in this count in the information could not have tended to the prejudice of the substantial rights of the defendant upon the merits. Billings v. State, 107 Ind. 54, 6 N.E. 914.

It is also claimed by counsel for the appellant that the second count in the information was insufficient, because it did not allege the name of the person to whom the room in question was rented by the appellant. The offence is charged in the language of the statute, and that is sufficient. Eastman v. State, 109 Ind. 278, 10 N.E. 97; State v. Miller, 98 Ind. 70. There was no error in overruling the motion to quash.

Under the causes assigned in the motion for a new trial counsel for appellant contend that the court erred in refusing to give instruction numbered three asked by appellant, and in giving instruction numbered two of its own motion.

Instruction...