Hoover v. State

• Decision Date: 09 April 1887
• Citation: 11 N.E. 434,110 Ind. 349
• Parties: Hoover v. State.
• Court: Indiana Supreme Court

110 Ind. 349

11 N.E. 434

Hoover

v.State.

Supreme Court of Indiana.

April 9, 1887.

Appeal from circuit court, Madison county.

Kittinger, Schwime & McMahon, for appellant. The Attorney General, for appellee.

NIBLACK, J.

On the fourth day of February, 1886, an affidavit was filed with the mayor of the city of Anderson, charging the appellant, Henry Hoover, with having on that day committed an assault and battery, with intent to murder John Suman. Upon a hearing of the charge thus made, the mayor ordered the appellant to enter into recognizance in the sum of $1,000 for his appearance at the ensuing March term of the Madison circuit court, which was to convene on the eighth day of March, 1886, and, in default of his having entered into such a recognizance, committed him to the county jail. On the twenty-second day of February, 1886, one Amos Coburn made before and filed with the clerk of such circuit court an affidavit charging the appellant with the same offense, and on the same day the prosecuting attorney filed in said clerk's office an information against the appellant, based on Coburn's affidavit. During the ensuing March term of the circuit court, the appellant appeared to the affidavit and information, and pleaded not guilty to the charge preferred by them against him. A jury found him guilty as charged, fixing his punishment at a fine of one dollar, and imprisonment in the state's prison for the term of five years. The appellant thereupon moved in arrest of judgment, upon the ground that as the affidavit and information were both filed in vacation of the circuit court, that tribunal had no jurisdiction to try him upon such pleadings, claiming that the jurisdiction to try a felony without an indictment, depends upon the filing of the affidavit and information while the proper court is in session.

Section 1679, Rev. St. 1881, provides that “all public offenses, except treason and murder, may be prosecuted in the circuit and criminal courts, by information based upon affidavits, in the following cases: First, whenever any person is in custody or on bail on a charge of felony or misdemeanor, except treason and murder, and the court is in session, and the grand jury is not in session, or has been discharged; second, when, in certain contingencies, an indictment has been quashed; third, when the cause has been appealed to the supreme court, and reversed on account of some defect in the indictment; fourth, when a public offense has been committed, and the party charged is not already under indictment, and the court is in session, and the grand jury has been discharged for the term; fifth, whenever, either in term or vacation, any competent and reputable person has knowledge of the commission of any misdemeanor not within the exclusive jurisdiction of a justice of the peace, he may make an affidavit before any person authorized to administer oaths, setting forth the offense, and the person charged, in plain and concise language, together with the names of the witnesses, and file the same with the clerk, who shall thereupon notify the prosecuting attorney thereof. The prosecuting attorney shall at once prepare and file an information, in term or vacation, in every case, against the person charged in said affidavit.” Section 1733 of the same revision of the statutes, which prescribes the form of an information, concludes: “And in a prosecution for a felony by information, it shall not be necessary to prove the facts showing the right to prosecute by information, unless such facts are put in issue by a verified plea in abatement.”

There is some obscurity in the general structure, as well as in some of the minor details, of section 1679, above referred to, and we have already had considerable difficulty in giving to several of its provisions a practical and harmonious construction. Lindsey v. State, 72 Ind. 39;State v. Bunnell, 81 Ind. 315;State v. Frain, 82 Ind. 532;State v. De Long, 88 Ind. 312;Elder v. State, 96 Ind. 162;State v. Boswell, 104 Ind. 541, 4 N. E. Rep. 675. The section, however, when taken in connection with section 1733, recognizes an obvious distinction between prosecutions for felonies and those for misdemeanors, as to the necessary existence of jurisdictional facts, before a prosecution can be commenced by information under it. As has been seen, the fifth clause of the section expressly authorizes the filing of an affidavit...