Kennegar v. The State
| Decision Date | 08 June 1889 |
| Docket Number | 14,891 |
| Parties | Kennegar v. The State |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Oct. 10, 1889.
From the Starke Circuit Court.
Judgment affirmed, with costs.
L. T Michener, Attorney General, H. A. Steis, Prosecuting Attorney, J. H. Gillett, G. W. Beeman and J. C. Fletcher, for the State.
The appellant was convicted of receiving stolen goods, knowing the same had been stolen. The prosecution was commenced before a justice of the peace, and the preliminary examination was held before the justice on the 2d day of March, 1889, and the defendant was recognized to appear at the March term, 1889, of the Starke Circuit Court, which commenced on the 9th day of March, 1889.
During the March term, 1889, of said court, the prosecuting attorney by leave of court filed an amended affidavit and information. There were two counts in each, one count in each charging the crime of receiving stolen goods, and the other charging grand larceny. There was a plea in abatement filed by the defendant, which presents the question of the right of the State to prosecute a charge of felony where, as in this case, the prosecution has been commenced in vacation and the defendant recognized to appear at the succeeding term of court, and no grand jury having been empanelled at such term prior to putting the defendant upon trial.
It is contended that the statute requires the empanelling of a grand jury at each term of the circuit court, and that a person arrested in vacation and recognized to appear at a succeeding term of court, can only be prosecuted by a submission of the charge to the grand jury and the finding of an indictment.
Section 1387, R. S. 1881, requiring the clerk to draw the names of six competent persons, who shall be summoned as the grand jury for the ensuing term, and providing for the clerk issuing a venire therefor, as the court or judge in vacation may direct, does not require that the grand jury shall be summoned for any particular time in the term. The court in term, or the judge in vacation, can order them summoned to appear on any particular day of the term which he deems proper.
Section 1679, R. S. 1881, provides that "All public offences, except treason and murder, may be prosecuted in the circuit and criminal courts by information based upon affidavit in the following cases:
This clearly contemplates that the court may be in session and the grand jury not in session at a time other than after the grand jury has been discharged, and at such time a prosecution may be by information, and if these sections which have been referred to by counsel were the only statutory provisions upon the subject, this cause was properly prosecuted on affidavit and information, and the ruling of the court in sustaining the demurrer to the plea in abatement was proper. But there is another statute, approved March 10th, 1873 (2 R. S. 1876, p. 418), which leaves the calling of a grand jury to the discretion of the court, providing it shall be convened twice in every year. This statute is consistent with the other sections relating to the empanelling of grand juries, and we are not aware of its having been repealed, and it is still in force, and is in conflict with the theory advanced by counsel, that it is imperative on the part of the court to convene a grand jury at each term of court.
It is next urged that there is a variance in the charge made in the affidavit filed before the justice of the peace and the affidavit and information filed in the circuit court, and that the court erred in overruling the motion to quash the affidavit and information.
There was an amended affidavit and information filed in the circuit court, and a motion to quash the amended affidavit and information, for the reason that the charge in the amended...
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