Kirschbaum v. State

• Decision Date: 08 October 1925
• Docket Number: No. 24583.,24583.
• Citation: 149 N.E. 77,196 Ind. 512
• Parties: KIRSCHBAUM v. STATE.
• Court: Indiana Supreme Court

196 Ind. 512

149 N.E. 77

KIRSCHBAUM

v.STATE.

No. 24583.

Supreme Court of Indiana.

Oct. 8, 1925.

Appeal from Circuit Court, Pulaski County; W. C. Pentecost, Judge.

August Kirschbaum was convicted of disturbing a public assemblage, and he appeals. Affirmed.

Reidelbach Brothers, Harry W. McDowell, and John M. Spangler, all of Winamac, for appellant.

U. S. Lesh, Atty. Gen., for the State.

WILLOUGHBY, C. J.

The action was a prosecution based upon an affidavit of one May Felix before O. S. Kelso, a justice of the peace of Monroe township, Pulaski county, Ind., charging the appellant with having unlawfully interrupted, molested, and disturbed a certain collection of divers inhabitants of the state, met together for a lawful purpose, in Pulaski county, Ind., on July 14, 1923.

Upon an affidavit for change of venue, the cause was venued to M. L. Graves, a justice of the peace of said Monroe township, before whom the case was tried and judgment rendered against appellant. From the judgment of said justice of the peace, the appellant appealed to the Pulaski circuit court of Indiana, where the case was tried before a jury, which returned a verdict against the appellant. The Pulaski circuit court rendered judgment on the verdict from which judgment the appellant appeals. The only errors properly assigned are: That the court erred in overruling appellant's motion to quash the affidavit. That the court erred in overruling appellant's motion in arrest of judgment. That the court erred in overruling appellant's motion for a new trial.

The charging part of the affidavit is as follows:

“May Felix, being first duly sworn, upon oath says that August Kirschbaum, on the 14th day of July, 1923, at the county and state aforesaid, did then and there unlawfully interrupt, molest, and disturb a certain collection of divers inhabitants of said state, then and there met together for a lawful purpose, by then and there talking loudly and unnecessarily, using threatening, abusive, profane, and obscene language and otherwise behaving rudely.”

This prosecution is filed under section 2349, Burns' 1914; section 453 of an act concerning public offenses, approved March 10, 1905, being chapter 169 of said act on page 584, Acts 1905. This section is a re-enactment of section 1988 of the Revised Statutes 1881, which was a substantial re-enactment of a section of an act of the Legislature approved November 30, 1865 (Laws 1865, Called Sess., c. 100).

The appellant's motion to quash the affidavit was on the following grounds: (1) That the facts stated in the affidavit do not constitute a public offense. (2) That said affidavit does not state the offense with sufficientcertainty. These causes are the second and fourth causes named in section 2065, Burns' 1914, as reasons for quashing an indictment or affidavit.

[1] The reasons for quashing the affidavit must appear upon the face of the affidavit itself. A motion to quash an indictment is statutory and must be limited by such statute. Motions to quash point only to the sufficiency of the pleading attacked, the same as a demurrer, tests a pleading in civil actions. Davis v. State, 69 Ind. 130;Scott v. State, 176 Ind. 382, 96 N. E. 125.

It is alleged in this affidavit that the appellant unlawfully interrupted, molested, and disturbed a certain collection of divers inhabitants of the state met together for a lawful purpose in Pulaski county, Indiana, on July 14, 1923. The manner of such disturbing and molesting was fully stated and set forth in such affidavit.

In Kidder v. State, 58 Ind. 68, and Howard v. State, 87 Ind. 68, affidavits substantially the same as this one were held sufficient. We hold in this case that the motion to quash the affidavit was properly overruled.

[2] Appellant complains that the court erred in overruling his motion in arrest of judgment. Section 2159, Burns' 1914, provides as follows:

“A motion in arrest of judgment is an application in writing, on the part of the defendant, asking that no judgment be rendered on a plea, finding or verdict of guilty, and may be granted by the court for either of the following causes: First. That the grand jury which found the indictment had no legal authority to inquire into the offense charged, for the reason that such offense was not within the jurisdiction of the court. Second. That the facts stated in the indictment or affidavit do not constitute a public offense. The court may also, on its view of any of these defects, arrest the judgment without motion. The effect of allowing a motion in arrest of judgment is to place the defendant in the same situation in which he was before the indictment was found or affidavit filed, except in cases otherwise provided for.”

This section has been amended since appellant was convicted by adding the following proviso:

“That such motion in arrest of judgment may be filed either before or after the motion for new trial, and the filing of such motion shall not preclude the right of the defendant to subsequently file a motion for a new trial.” Acts 1925, p. 490, c. 203.

Section 1949, Burns' 1914, provides for an appeal from a judgment rendered in a criminal case by a justice of the peace. Section 1950 provides that on such appeal the prisoner shall give a recognizance bond, and prescribes the form of bond. Section 1951 provides that such recognizance, together with the transcript of proceedings and all papers in the case shall be forthwith filed by the justice of the peace with the clerk of the proper court, who shall docket such cause for trial and record such recognizance forthwith and enter the same on the judgment docket.

The appellant claims that, when the justice of the peace filed the recognizance and transcript of the proceedings as required by section 1951, Burns' 1914, in the Pulaski circuit court, no record was made to show that the original affidavit was among the papers so filed, and that, on the failure of the record to so show, the court was without jurisdiction to try the case. In this the appellant is mistaken. The case was properly in the Pulaski circuit court.

In State ex rel. Jacoby v. Cressinger, 88 Ind. 499, the court held that the failure of the justice of the peace to perform his duty in sending up a transcript within the time fixed by statute, when the appeal is properly taken, from the judgment, does not deprive the party of his appeal. The question as to whether or not the appellant was tried upon the original affidavit filed with the justice of the peace or only a copy thereof cannot be raised by a motion to quash the affidavit or by a motion in arrest of judgment.

In O'Brien v. State, 125 Ind. 38, 25 N. E. 137, 9 L. R. A. 323, it is held that, where a change of venue from the county is taken in a criminal case the statute makes it the duty of the clerk of the court, where the cause originated, to make a transcript of the proceedings had in that court, and to seal it up, together with the original papers, and deliver the same to the sheriff of his county, whose duty it is to deposit the...