Lankford v. State
| Decision Date | 01 April 1896 |
| Docket Number | 17,721 |
| Citation | 43 N.E. 444,144 Ind. 428 |
| Parties | Lankford v. The State |
| Court | Indiana Supreme Court |
From the Knox Circuit Court.
The judgment is affirmed.
W. A Cullop, C. B. Kessinger, H. Burns and J. S. Pritchett, for appellant.
W. A Ketcham, Attorney-General, and F. E. Matson, for State.
The appellant was convicted on a charge of rape, alleged, in the affidavit and information on which he was prosecuted, to have been committed on one Dora Little, who was alleged to be a female child under the age of fourteen years.
The court, at the proper time, sustained a demurrer to appellant's plea in abatement and overruled his motion for a new trial and his motion in arrest of judgment.
Error is assigned on these rulings. The last one of the alleged errors is waived by appellant in failing to refer to it in his brief.
The substance of the plea in abatement is that, on the 25th day of October, 1894, the affidavit and information were filed in the Knox Circuit Court; that he had theretofore, to-wit: on July 2d, 1894, been bound over to the Knox Circuit Court by the mayor of Vincennes to answer said charge, and that he had been in custody ever since up to October 25, 1894; "that at the Knox Circuit Court there was a grand jury regularly drawn to investigate into high crimes and misdemeanors committed within the jurisdiction of the county prior to the first day of September, 1894, and during said term; that on the 25th day of October, 1894, when said affidavit and information were so filed against him said grand jury had not been discharged for said term, and no order of said court had been made relative to the discharge of the same for said term of court;" that he is not guilty of any crime as charged in said affidavit and information; that he had not been indicted by any grand jury for the same during said term or any other, and that during all of said time the Knox Circuit Court was in session.
It has been held by this court that to constitute a good plea in abatement of a criminal charge by affidavit and information the plea must negative all the provisions of the statute authorizing a prosecution for the offense by affidavit and information. State v. Drake, 125 Ind. 367, 25 N.E. 434.
Prosecutions by affidavit and information of all public offenses, except treason and murder, are authorized by our criminal code in any one of the four cases, namely: 1. Whenever a 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. 2. Whenever an indictment presented by the grand jury has been quashed, and the grand jury for the term, when such indictment is quashed, is not in session or has been discharged. 3. When a cause has been appealed to the Supreme Court and reversed on account of any defect in the indictment; and 4, Whenever a public offense has been committed, and the party charged with the offense is not already under indictment therefor and the court is in session, and the grand jury has been discharged for the term. R. S. 1894, section 1748 (R. S. 1881, section 1679). All these facts must be negatived and put in issue by a plea in abatement, or it will be insufficient on demurrer. Hodge v. State, 85 Ind. 561; Elder v. State, 96 Ind. 162; State v. Drake, supra.
Conceding, without deciding, that the facts essential to authorize a prosecution by affidavit and information in the two cases last named have been sufficiently put in issue by the plea, we think it does not put in issue the facts named in the first case, authorizing such a prosecution, namely, that "the grand jury is not in session or has been discharged." The non-existence of these two facts must be alleged.
It is alleged that the grand jury had not been discharged, which sufficiently negatives one only of the facts in question. But the non-existence of that fact is not enough, because its non-existence is not inconsistent with the fact that the grand jury is either in session or has never been impaneled. There is no allegation that the grand jury was then in session, or ever had been during the term. If it had not been so in session, the right to prosecute by affidavit and information was authorized by statute, as we have seen. Hence, the plea to be sufficient should have negatived the fact by alleging that the grand jury was in session, and thus put in issue the right to so prosecute. Instead of alleging that the grand jury was in session, the plea alleges that "there was a grand jury regularly drawn," but it nowhere alleges that such grand jury was ever impaneled or organized, or ever went into session. Without showing that the grand jury was ever in session during the term, it would be idle to allege that it had not been discharged. Such non-discharge would be perfectly consistent with the fact that such grand jury had never been impaneled, and therefore consistent with the right to prosecute by affidavit and information. But even if the allegation that there was a grand jury regularly drawn could be held equivalent to an allegation that it was impaneled and went into session, still the plea is insufficient because it nowhere states what term of court it was drawn for. There might have been a grand jury drawn for a subsequent term and not at the term at which appellant was prosecuted. In such case he could be prosecuted by affidavit and information. The law does not absolutely require a grand jury at every term of the circuit court. Kennegar v. State, 120 Ind. 176, 21 N.E. 917. But even if a grand jury had been in session since appellant's arrest and had been discharged without indicting him, is no reason why he may not be prosecuted by affidavit and information. State v. Boswell, 104 Ind. 541, 4 N.E. 675, upon this point is overruled, as it interpolates into the statute a condition inconsistent with its plain provisions.
A plea in abatement must be strictly construed. Musgrave v. State, 133 Ind. 297, 32 N.E. 885; Billings v. State, 107 Ind. 54, 6 N.E. 914.
Therefore, the allegation that there was a grand jury regularly drawn is not equivalent to an allegation that such grand jury was impaneled, organized or went into session, nor that such grand jury had been in session. Hence, the court did not err in sustaining the demurrer to the plea in abatement.
The fourth and fifth reasons for a new trial relate to the testimony of Eliza Little, the mother of the prosecutrix. The testimony and objection thereto read as follows: ...
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