Johnson v. State
| Decision Date | 10 October 1895 |
| Docket Number | 1,893 |
| Citation | 41 N.E. 550,13 Ind.App. 299 |
| Parties | JOHNSON v. STATE OF INDIANA |
| Court | Indiana Appellate Court |
From the Jay Circuit Court.
Judgment affirmed.
J. R Perdieu and W. H. Williamson, for appellant.
W. A Ketcham, Attorney-General, M. Moores and R. H. Hartford, for State.
The appellant was charged with keeping a house of ill-fame. The prosecution was by affidavit instituted before a justice of the peace. The affidavit, omitting the caption and jurat, is in these words: "Samuel Bone swears that Belle Johnson, on the 14th day of June, 1894, and on divers other days prior to that day and the day of filing this affidavit, at said county, did unlawfully keep a certain house of ill-fame, to-wit: A house situated on lot numbered thirteen (13), in Tucker's addition to the city of Portland, in the county and State aforesaid, then and there resorted to for the purposes of prostitution by Hiram Nute and others to the affiant unknown."
The first assignment of error is that the trial court erred in overruling appellant's motion to quash the affidavit. There is nothing in the record to indicate that a motion to quash was made or that the court below ever ruled on such a motion. No question is presented under this assignment.
The only other error assigned is the overruling of appellant's motion for a new trial.
The appellant insists that there is a fatal variance between the charge and the proof in this, the affidavit alleges that the house which was unlawfully kept was situated on lot 13, in Tucker's addition to the city of Portland, while the proof shows that the house was situated on lot 13 in Tucker's subdivision of outlots 7, 8, 9 and 10 in D. C. Baker's addition. It is earnestly contended that there is an essential difference between an addition to a city or town and a subdivision of a part of an addition; that it was necessary to describe the realty on which the house was situated specifically, and to prove the description as alleged. The statute (section 2080, Burns Rev. 1894; section 1994, R. S. 1881) provides that "Whoever keeps a house of ill-fame, resorted to for the purpose of prostitution or lewdness, * * * shall be fined," etc. If it was essential to describe the real estate in the affidavit, it was also essential to prove it substantially as alleged or there would be a fatal variance--and this rule applies to unnecessary matters--that is to say, if some description is necessary, but the pleader goes farther and alleges unnecessary matter of description, then he is required to prove both as alleged. Ball v. State, 26 Ind. 155; Wertz v. State, 42 Ind. 161; Dennis v. State, 91 Ind. 291; Lewis v. State, 113 Ind. 59, 14 N.E. 892. But if no matter of description need be pleaded at all, then if pleaded it is surplusage and need not be proved as alleged, or at all, and there is no variance. In Hull v. State, 120 Ind. 153, 22 N.E. 117, this language was used: "Where unnecessary descriptive matter is mingled with matter of essential description, the whole must be proved as laid, but the limit of the doctrine is that if the entire averment, whereof the descriptive matter is a part, is surplusage it may be rejected and the descriptive matter falls with it and need not be proved." 1 Bishop Crim. Proced., section 487.
Was it necessary in the affidavit under consideration to give any description of the lot or parcel of real estate on which the house was situated? If so, then the description must be proved as alleged, even if the description descend into unnecessary detail. But if no description was necessary then, if alleged, it may be treated as surplusage and no part of it need be proved.
There is much confusion in the authorities as to when matters of local description are necessary to be alleged. In the early history of English criminal jurisprudence the jurors were the witnesses who...
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