Hamilton v. The State

• Decision Date: 23 September 1885
• Docket Number: 12,533
• Citation: 2 N.E. 299,103 Ind. 96
• Parties: Hamilton v. The State
• Court: Indiana Supreme Court

2 N.E. 299

103 Ind. 96

Hamilton v. The State

No. 12,533

Supreme Court of Indiana

September 23, 1885

From the Hancock Circuit Court.

The judgment is affirmed, with costs.

E Marsh and W. W. Cook, for appellant.

F. T Hord, Attorney General, and W. B. Hord, for the State.

OPINION

Niblack, J.

The indictment in this case, with all the usual and necessary formality, charged the appellant, Hamilton, with having, on the 10th day of January, 1885, sold to one Beard intoxicating liquor, in a less quantity than a quart at a time, to wit one gill of such liquor, at and for the price and sum of ten cents, without a license to so sell intoxicating liquor. The indictment was a printed blank with the term of court, date name of appellant, and charging part filled in with a pen, and the name of the prosecuting attorney, with the title of his office annexed, printed at the bottom instead of being written, as is usual in attaching the name of that officer to an indictment.

The appellant moved to quash the indictment upon the ground that the signature of the prosecuting attorney was necessary to its validity, and that the attaching of his name in print was not his signature within the meaning of the statute requiring that an indictment shall be signed by him. But the circuit court overruled the motion to quash, and a jury returned a verdict of guilty, fixing the appellant's punishment at a fine only, upon which a judgment of conviction was rendered.

Error is first assigned upon the refusal of the circuit court to quash the indictment.

Section 1669, R. S. 1881, provides that after an indictment has been found by a grand jury, "it must be signed by the prosecuting attorney," and where an indictment is returned without his signature, section 1670 makes it the duty of the court to require the prosecuting attorney to sign it. Section 240 of the same revision of statutes, which prescribes certain rules for the construction of the statutes of this State, declares that "The words 'written' and 'in writing' shall include printing, lithographing, or other mode of representing words and letters. But in all cases where the written signature of any person is required, the proper handwriting of such person, or his mark, shall be intended."

The word "sign," as a verb, has several shades of meaning, and hence a statutory requirement that an instrument in writing, or a pleading, shall be "signed" by some person or officer to make it complete, is much more general and comprehensive than a similar requirement that such an instrument or pleading must be "subscribed" by the person or officer. 3 Parsons Cont., bottom p. 8. On the same principle, the "signing" of a written instrument or pleading by a person or officer has a much broader and more extended meaning than attaching his "written signature" to it implies. When a person attaches his name, or causes it to be attached, to a writing, by any of the known modes of impressing his name upon paper, with the intention of signing it, he is regarded as having "signed" the writing. On that subject Waterman on the Specific Performance of Contracts, at section 240, says: "Where the buyer's name was stated in the commencement, and signed with his initials, it was held sufficient. The signature may be in pencil. And if the party's name be printed or stamped on the memorandum, he intending it at the time as his signature, and affirming it to be such, it will constitute a signing within the requirements of the statute. Thus, where a vendor inserted in a printed invoice, which contained his name, the name of the purchaser, it was held that there was such a ratification and adoption of the printed name as satisfied the statute." See Rapalje & L. Law Dictionary, Title "Sign-Signature;" Fry Spe. Perf. Cont., section 500; Chitty Cont., p. 549; also authorities cited by these authors.

As the prosecuting attorney is required to sign an indictment as a matter of verification merely, there is no reason for enforcing a more rigid rule as to the validity of his signature than in cases of ordinary business transactions, to which the authorities above cited mainly have reference. This is plainly inferable from the fact that a prosecuting attorney may appoint a deputy, who, by virtue of his appointment, becomes authorized to sign the name of such prosecuting attorney to indictments, as well as to other pleadings filed, on behalf of the State, in a criminal cause. R. S. 1881, sections 5568, 5569, 5570; Stout v. State, 93 Ind. 150. If, therefore, the name of the prosecuting attorney be legibly attached to an indictment by his consent, whether express or implied, it is a sufficient "signing" by him within the meaning of the statute, and when the name of the prosecuting attorney is found appended to an indictment, the presumption is that it was so appended by his authority.

Having reached the conclusion that the indictment in this case was in legal contemplation, signed by the prosecuting attorney, it becomes irrelevant to inquire...