Malone v. State

Decision Date29 January 1913
Docket Number22,244
Citation100 N.E. 567,179 Ind. 184
PartiesMalone v. State of Indiana
CourtIndiana Supreme Court

From Sullivan Circuit Court; William H. Bridwell, Judge.

Prosecution by the State of Indiana against Bate Malone. From a judgment of conviction, the defendant appeals.


Henry W. Moore and Charles H. Bedwell, for appellant.

Thomas M. Honan, Attorney-General, Thomas H. Branaman, Edwin Corr and James E. McCullough, for the State.


Cox, J.

Appellant was convicted before a justice of the peace of a violation of § 22 of the mining act of 1905 (Acts 1905 p. 65, § 8592 Burns 1908), by serving in the capacity of a hoisting engineer at a coal mine without having a certificate of service or competency. He appealed to the circuit court and there moved to quash the affidavit. Before a ruling on this motion was made by the court the prosecuting attorney upon leave of the court and over appellant's objection filed an amended affidavit. Appellant then moved to strike out the amended affidavit and this motion was overruled.

It is first contended that the court erred in permitting the prosecuting attorney to file an amended affidavit. The criminal code (§ 2043 Burns 1908, Acts 1905 p. 584 § 172), permits the amendment of an affidavit in matter of substance or form at any time before the defendant pleads. State v. Anderson (1912), 177 Ind. 437, 98 N.E. 289. The record is silent and does not show that, at the time the prosecuting attorney was given permission to file an amended affidavit, appellant had pleaded to the charge against him either in the justice's court or the circuit court. The silence of the record is made definitely significant that there had been no plea by the action of appellant in filing a motion to quash which he could not properly do with a plea in. Epps v. State (1885), 102 Ind. 539, 544, 1 N.E. 491. The rule is well settled that, in the absence of an affirmative showing by the record to the contrary, the ruling of the trial court will be taken to be correct. So in this state of the record it must be presumed, in support of the action of the circuit court in granting the prosecuting attorney leave to file an amended affidavit, that no plea had been entered by appellant at the time the leave was given. In such case the statute clearly permits amendment. To sustain appellant's contention, that the court's action was erroneous, it would be necessary for the record to show affirmatively that a plea had been made and not withdrawn prior to the action of the court granting permission to amend the affidavit. The case of Johns v. State (1886), 104 Ind 557, 4 N.E. 153, upon which reliance is placed by appellant to show that the amendment of the affidavit in this case was permitted and made after plea, does not, when rightly considered, aid appellant's contention. In that case the record was silent and did not show a plea and it was contended that as a trial without a plea was erroneous the judgment should be reversed. It was held that the mere silence of the record did not show affirmatively that there was no plea and, that not appearing, this court would presume in support of the judgment of the lower court that there was. The case in fact lends support to the conclusion above indicated that as it is not made to appear that the application to amend was not timely, the court therefore did not err in granting it.

It is next insisted that appellant's motion to strike out the amended affidavit should have been sustained for the reason that it was signed by the prosecuting attorney instead of the person who signed the original and that, therefore, it was a new affidavit and not an amended one. Aside from this the amended affidavit was not materially different from the first one. The facts averred, including the date of the alleged violation, are the same. We cannot see how the difference in person of the signatories can force the conclusion that the second affidavit was other than an amended one.

The appellant filed what is termed an answer and plea in abatement to the amended affidavit and the State's demurrer to it was sustained. This, appellant's counsel contend, was error. This pleading set up the facts showing the conviction of appellant before the justice on the original affidavit and, it is claimed, the filing of the amended affidavit put appellant in a second jeopardy for the same offense. We can not concede the claim. To sustain the contention, it would seem, would lead to the absurdity of holding that a conviction before a justice would bar a trial on appeal in the circuit court on the original affidavit. The appeal, in fact, is more than a stay of the judgment of conviction before...

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