Mattingly v. State

• Decision Date: 02 April 1952
• Docket Number: No. 28769,28769
• Citation: 230 Ind. 431,104 N.E.2d 721
• Parties: MATTINGLY v. STATE.
• Court: Indiana Supreme Court

Page 721

104 N.E.2d 721

230 Ind. 431

MATTINGLY v. STATE.

No. 28769.

Supreme Court of Indiana.

April 2, 1952.

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 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 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 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 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 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 § 9-2320, Burns' 1942 Replacement, supra, that where the substantial rights of a defendant are not prejudiced by defects that could have been perfected in the trial court, such defects will not be considered as grounds for reversal on appeal. Construing this statute in Robinson v. State, 1912, 177 Ind. 263, at page 265, 97 N.E. 929, at page 930, supra, this court said: 'If, in fact, it [the affidavit] was not indorsed as required, and the trial court's attention had been directed to the defect by a motion to quash before the beginning of the trial, it could then have been properly indorsed. Cole v. State [(1907), 169 Ind. 393, 82 N.E. 796] supra. It would be a reproach to the law to require a judgment to be held for naught and the state put to the expense of another trial for a defect which did not prejudice the substantial rights of appellant, and which he could have had corrected before trial if it in fact existed. This we are forbidden to do. Section 2221, Burns 1908 [ § 1891 R.S.1881].'

This statement was quoted with approval in Bledsoe v. State, 1945, 223 Ind. 675, 693, 694, 64 N.E.2d 160.

See also: Brown v. State, 1941, 219 Ind. 251, 258, 37 N.E.2d 73, 137 A.L.R. 679; Boos v. State, 1914, 181 Ind. 562, 571, 105 N.E. 117; Lay v. State, 1913, 180 Ind. 1, 4, 102 N.E. 274.

The error here complained of could have been corrected in the trial court by the formal endorsement of the affidavit by the prosecuting attorney after it was filed. McSwane v. State, 1929, 200 Ind. 548, 550, 165 N.E. 319, 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, supra.

Since the question of endorsement of 'approved by me' by the prosecuting attorney on the affidavit herein was not raised in the trial court appellant thereby waived this requirement of the statute and no question is presented on appeal to this court. Knapp v. State, 1932, 203 Ind. 610, 181 N.E. 517, supra; Tow v. State, 1926, 198 Ind. 253, 151 N.E. 697, supra.

Second: The verdict is not sustained by sufficient evidence and is contrary to law. (Assigned Error No. 2.)

Appellant is charged in the affidavit with taking, stealing and carrying away eight hundred cotton bags, the property of Mt. Vernon Milling Company, of the value of $296.

In order to sustain the conviction herein the state was required to produce evidence to prove, or from which the jury might reasonably infer: (1) That appellant stole, took or carried away personal property of the Mt. Vernon Milling Company (plain cotton bags) of the value of $25 or more, Acts of 1941, ch. 148, § 9, p. 447, § 10-3001, Burns' 1942 Replacement; or, (2) That he aided, abetted, counseled, encouraged, hired, commanded, or otherwise caused said bags to be stolen, taken or carried away. Acts of 1905, ch. 169, § 224, p. 584, § 9-102, Burns' 1942 Replacement. Guetling v. State, 1927, 198 Ind. 718, 153 N.E. 765.

This court will not weigh evidence when its sufficiency is questioned on appeal, but will examine the record to determine whether there is any evidence of probative value, or any reasonable inferences which may be properly drawn therefrom, which would sustain the verdict of the jury or the decision of the trial court. Smith v. State, 1951, 229 Ind. 546, 550, 99 N.E.2d 417, 149; Todd v. State, 1951, 230 Ind. 85, 87, 101 N.E.2d 922.

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