Gardner v. State

• Decision Date: 31 December 1853
• Citation: 4 Ind. 632
• Parties: Gardner v. The State
• Court: Indiana Supreme Court

4 Ind. 632

Gardner v. The State

Supreme Court of Indiana

December 31, 1853

APPEAL from the Decatur Circuit Court.

The judgment is reversed with costs. Cause remanded.

J. S Scobey, for the appellant.

R. A Riley, for the state.

OPINION

Stuart J.

The state, by her attorney prosecuting, filed a charge, verified by affidavit, against Gardner, for assault and battery. The charge was made at the January term of the Decatur Common Pleas. It appears that Gardner was a school-teacher, and the party assaulted, his pupil. While they stood in such relations to each other, a controversy arose between them about the spelling of the word "commerce." The pupil, Stuart, having missed in spelling the word, and refused to try again, Gardner became angry and commenced beating him. He wore out two whips on him, and in the progress of the chastisement administered to Stuart a blow or two with his fist on the head, and a couple of kicks in the face. Two witnesses for the defence, who were also pupils and present, testified negatively that they did not see the blows nor the kicks.

The cause was submitted to a jury, verdict guilty, fine 2 dollars, and judgment accordingly.

In the progress of the cause several objections were taken, which are urged here for a reversal. Among the most material are, 1. That the christian name of the defendant is not set out in the charge, but only initials. He is described as "one A. G. Gardner, late of said county." For this cause the defendant moved to quash the complaint. The criminal code established by the revision of 1852 provides that the indictment or information must contain, amongst other things, the names of the parties. Vol. 2, R. S. 1852, p. 367. But this code was not in force in January, 1852. Jones v. Cavins, ante, p. 305. Under the old system, which was still in force, the charge was equally defective. The only question is, how is the defendant to take advantage of it, by plea in abatement or by motion to quash? Had the complaint charged Gardner by a wrong christian name, his proper course would have been to plead in abatement. 1 Chitty Crim. L. 202. But when there is no christian name given, and no allegation that the party has not a christian name, nor that it is unknown, the defect being apparent on the face of the record, it would seem on principle that a plea in abatement was unnecessary. The office of a plea is to inform the Court of some extrinsic matter. Here the defect of name is clearly before the Court. For every person is presumed to have a christian name until the contrary is made to appear by proper averment. The question of sufficiency can in this instance be as fully raised by motion to quash as by plea in abatement. And though Chitty lays it down as the rule that a plea in abatement will lie in such cases, yet he adds, that for objections apparent on the face of the indictment itself, without reference to any extrinsic fact, it is more usual to move to quash. 1 Chitty Crim. L. 445.

The motion to quash was met by a counter motion to file an information in which the christian name of Gardner was alleged to be unknown. The Court overruled the former and sustained the latter. This was erroneous. In January, 1853, the R. S. of 1852...