Mattingly v. State, No. 28769

Docket NºNo. 28769
Citation230 Ind. 431, 104 N.E.2d 721
Case DateApril 02, 1952
CourtSupreme Court of Indiana

Page 721

104 N.E.2d 721
230 Ind. 431
MATTINGLY

v.
STATE.
No. 28769.
Supreme Court of Indiana.
April 2, 1952.

[230 Ind. 433] Burt Cheatham, Marion J. Rice and Carrol F. Dillon, all of Evansville, DeRoo Weber, Mt. Vernon, for appellant.

J. Emmett McManamon, Atty. Gen., George W. Hand, John Ready O'Connor, Deputies, for appellee.

BOBBITT, Judge.

Appellant was charged by affidavit with the offense of grand larceny, was tried by a jury which returned a verdict of guilty, and was sentenced to the Indiana State Prison for a period of not less than one (1) year nor more than ten (10) years, fined Five ($5) Dollars, and disfranchised and rendered incapable of holding any office of trust or profit for a period of two (2) years.

From the judgment overruling appellant's motion for a new trial, this appeal is prosecuted.

Among the errors assigned only two need be considered.

First: That the affidavit upon which appellant was tried was not endorsed and approved by the prosecuting attorney as provided by the Acts of 1905, ch. 169, § 119, p. 584, § 9-909, Burns' 1942 Replacement. (Assigned error No. 4.) While it is not necessary to dispose of this question in reaching a final determination of the case, we feel that because of its importance and the apparent conflict in certain opinions of this court, the question should here be considered and the rule applicable thereto clarified. Appellant did not raise this [230 Ind. 434] question in the trial court and presents it here for the first time.

In support of this assignment appellant relies upon McSwane v. State, 1929, 200 Ind. 548, 165 N.E. 319. In this case appellant McSwane was tried in the Circuit Court upon an original affidavit which had been filed in the city court. Said affidavit

Page 722

was not at any time approved by the prosecuting attorney. This court there held that because the affidavit was not approved by the prosecuting attorney, even though the question was not raised in the trial court, the finding of the court was contrary to law. However, 200 Ind. at page 550, 165 N.E. at page 320, the court said: 'The defendant did not file a motion to quash the affidavit. Had this been done, the motion should have been sustained. [Citing authorities.] But, if the attention of the trial court had been directed to the fact that the affidavit did not bear the approval of the prosecuting attorney, by a motion to quash before the beginning of the trial, it then could have been indorsed.'

We believe this statement brings the error assigned in the McSwane case clearly within the provisions of § 334 of ch. 169 of the Acts of 1905, p. 584, § 9-2320, Burns' 1942 Replacement, as being an exception which did not prejudice the substantial rights of the defendant, and the case should not have been reversed for failure of the affidavit to bear the endorsement of the prosecuting attorney, where the question was not raised in the trial court. For this reason McSwane v. State, 1929, 200 Ind. 548, 165 N.E. 319, supra, is hereby overruled insofar as it is in conflict with this opinion.

It has long been the law in Indiana that the question of the endorsement of an affidavit by the prosecuting [230 Ind. 435] attorney cannot be raised on appeal unless the question has first been presented to the trial court. Knapp v. State, 1932, 203 Ind. 610, 615, 181 N.E. 517; Cox v. State, 1932, 203 Ind. 544, 551, 177 N.E. 898, 181 N.E. 469; Tow v. State, 1926, 198 Ind. 253, 257, 151 N.E. 697; Hicks v. State, 1916, 185 Ind. 223, 225, 113 N.E. 722; Robinson v. State, 1912, 177 Ind. 263, 265, 97 N.E. 929; Alvey v. State, 1936, 101 Ind.App. 391, 392, 199 N.E. 432.

The law is likewise well settled in Indiana that when the failure of the prosecuting attorney to endorse an affidavit with the words 'approved by me' is raised by a motion to quash, such motion must be sustained. Lynn v. State, 1934, 207 Ind. 393, 395, 193 N.E. 380; Hicks v. State, 1916, 185 Ind. 223, 225, 113 N.E. 722, supra; Robinson v. State, 1912, 177 Ind. 263, 265, 97 N.E. 929, supra; Cole v. State, 1907, 169 Ind. 393, 397, 82 N.E. 796; and if appellant herein had raised this question in a motion to quash it should have been sustained.

In Lynn v. State, supra, 193 N.E. 380, 381, this court held that the lack of endorsement of the prosecuting attorney's approval upon an affidavit 'will require the trial court to sustain a motion to quash in which it is alleged that the facts stated in the affidavit do not constitute a public offense.' It was there contended by appellee that the failure of the prosecuting attorney to endorse an affidavit as required by statute was an omission of 'a mere technical formality.' At page 398 of 207 Ind., at page 382 of 193 N.E., this court said: '* * * this court cannot presume to treat as a mere formal technicality an act which is required of a public officer by an unqualified mandate of the General Assembly.'

Further, 207 Ind. at page 399, 193 N.E. at page 382, it is said: 'From our point of view the indorsement of the prosecuting attorney[230 Ind. 436] is not a mere identification, but is intended to be uncontrovertible evidence that he does in fact approve the contents of the affidavit.' We approve the language used by Judge Treanor in this case, but believe that the requirement of the statute providing that the prosecuting attorney shall endorse 'approved by me' upon an affidavit is not such a mandate of the General Assembly which cannot be waived by an act or omission of the person charged in the affidavit.

While the endorsement of an affidavit by the prosecuting attorney may be more than 'a mere identification' we believe that when a defendant proceeds to trial, finding and judgment upon an affidavit which does not bear such endorsement, without objection thereto, the action of the trial court is such as did not 'prejudice the substantial rights of the defendant' within the meaning of § 334, ch. 169, Acts 1905, p. 584, § 9-2320, Burns' 1942 Replacement.

Appellant herein proceeded to trial upon the affidavit under which he was charged, permitted the jury to return its verdict, and the court to pronounce judgment without in any manner raising the question of the insufficiency

Page 723

of the affidavit because of the absence of the prosecuting attorney's formal approval. He knew the offense with which he was charged and the issues which he was called upon to meet, and we cannot, under these circumstances, perceive of any way in which his substantial rights were prejudiced by the failure of the affidavit to bear the endorsement of the prosecuting attorney as required by § 9-909, Burns' 1942 Replacement, supra.

It has been the law in Indiana since the enactment of...

To continue reading

Request your trial
29 practice notes
  • Baker v. State, No. 29297
    • United States
    • Indiana Supreme Court of Indiana
    • December 13, 1956
    ...228 Ind. 144, 149, 89 N.E.2d 915, 917. See also Christen v. State, 1950, 228 Ind. 30, 39, 40, 89 N.E.2d 445; Mattingly v. State, 1952, 230 Ind. 431, 438, 104 N.E.2d 721; Hansen v. State, 1952, 230 Ind. 635, 639, 106 N.E.2d 226; Harrison v. State, 1952, 231 Ind. 147, 168, 106 N.E.2d 912, 32 ......
  • Fox v. State, No. 2-376A109
    • United States
    • January 30, 1979
    ...must show that the ones alleged to aid or abet were aware of and consented to the activity condemned by law, Mattingly v. State (1952), 230 Ind. 431, 104 N.E.2d 721; although it need not necessarily prove a pre-conceived plan. Simmons v. State (1974), 262 Ind. 300, 315 N.E.2d 368. In the ca......
  • Hansen v. State, No. 28795
    • United States
    • Indiana Supreme Court of Indiana
    • May 29, 1952
    ...of the jury or the decision of the trial court and, if any such is found, they will not be disturbed. Mattingly v. State, 1952, Ind.Sup., 104 N.E.2d 721, From the evidence in the record, most favorable to the appellee, and the inferences to be properly drawn therefrom, it appears that appel......
  • Briscoe v. State, No. 1-1077A238
    • United States
    • Indiana Court of Appeals of Indiana
    • May 2, 1979
    ...228 Ind. 144, 149, 89 N.E.2d 915, 917. See also Christen v. State, 1950, 228 Ind. 30, 39, 40, 89 N.E.2d 445; Mattingly v. State, 1952, 230 Ind. 431, 438, 104 N.E.2d 721; Hansen v. State, 1952, 230 Ind. 635, 639, 106 N.E.2d 226; Harrison v. State, 1952, 231 Ind. 147, 168, 106 N.E.2d 912, 32 ......
  • Request a trial to view additional results
29 cases
  • Baker v. State, No. 29297
    • United States
    • Indiana Supreme Court of Indiana
    • December 13, 1956
    ...228 Ind. 144, 149, 89 N.E.2d 915, 917. See also Christen v. State, 1950, 228 Ind. 30, 39, 40, 89 N.E.2d 445; Mattingly v. State, 1952, 230 Ind. 431, 438, 104 N.E.2d 721; Hansen v. State, 1952, 230 Ind. 635, 639, 106 N.E.2d 226; Harrison v. State, 1952, 231 Ind. 147, 168, 106 N.E.2d 912, 32 ......
  • Fox v. State, No. 2-376A109
    • United States
    • January 30, 1979
    ...must show that the ones alleged to aid or abet were aware of and consented to the activity condemned by law, Mattingly v. State (1952), 230 Ind. 431, 104 N.E.2d 721; although it need not necessarily prove a pre-conceived plan. Simmons v. State (1974), 262 Ind. 300, 315 N.E.2d 368. In the ca......
  • Hansen v. State, No. 28795
    • United States
    • Indiana Supreme Court of Indiana
    • May 29, 1952
    ...of the jury or the decision of the trial court and, if any such is found, they will not be disturbed. Mattingly v. State, 1952, Ind.Sup., 104 N.E.2d 721, From the evidence in the record, most favorable to the appellee, and the inferences to be properly drawn therefrom, it appears that appel......
  • Briscoe v. State, No. 1-1077A238
    • United States
    • Indiana Court of Appeals of Indiana
    • May 2, 1979
    ...228 Ind. 144, 149, 89 N.E.2d 915, 917. See also Christen v. State, 1950, 228 Ind. 30, 39, 40, 89 N.E.2d 445; Mattingly v. State, 1952, 230 Ind. 431, 438, 104 N.E.2d 721; Hansen v. State, 1952, 230 Ind. 635, 639, 106 N.E.2d 226; Harrison v. State, 1952, 231 Ind. 147, 168, 106 N.E.2d 912, 32 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT