McSwane v. State

• Citation: 200 Ind. 548,165 N.E. 319
• Decision Date: 06 March 1929
• Docket Number: No. 25396.,25396.
• Parties: McSWANE v. STATE.
• Court: Indiana Supreme Court

200 Ind. 548

165 N.E. 319

McSWANE

v.STATE.

No. 25396.

Supreme Court of Indiana.

March 6, 1929.

Appeal from Vanderburgh Circuit Court; Chas. P. Bock, Judge.

Raymond McSwane was convicted of burglary, second degree, and he appeals. Reversed, with instructions.Benj. F. Zieg, of Evansville, for appellant.

Arthur L. Gilliom, Atty. Gen., and Harry L. Gause, Deputy Atty. Gen., for the State.

GEMMILL, J.

An affidavit, filed in the city court of the city of Evansville, charged appellant and another with the crime of burglary in the second degree. After a plea of not guilty, there was a hearing before the judge of the city court, who found that they were probably guilty. They were recognized to appear at the next term of the Vanderburgh circuit court.

In the circuit court, the appellant was tried upon the original affidavit, which had been filed in the city court. He was found guilty, and judgment was rendered on the court's finding. On appeal, it is claimed that the court erred in overruling the motion for a new trial, as the trial court was without jurisdiction of the subject-matter of the action and the finding of the court was contrary to law. It appears that the affidavit which was sent with the transcript to the circuit court, and which was filed there, had not been and was not at any time approved by the prosecuting attorney. Section 2103, Burns' 1926, provides that, in all cases where preliminary examinations are held by a justice of the peace or other officer of like jurisdiction, under the laws of the state of Indiana, upon a felony charge, and the person or persons who are thus charged are recognized to appear at the next term of the circuit or criminal court of the county in which such examination is held, and if there be no grand jury in session at the term of court at which such person or persons so recognized are to appear, he or they may be tried in the circuit or criminal court upon the affidavit filed before such justice of the peace or other officer of like jurisdiction, if such affidavit shall be approved by the prosecuting attorney by indorsement thereon by using the words, “Approved by me,” and signed by him as such prosecuting attorney.

All public offenses, except treason and murder, may be prosecuted in the circuit or criminal court by affidavit, under certain conditions prescribed by statute. Section 2150, Burns' 1926. And, when such affidavit has been made, the prosecuting attorney shall approve the same by indorsement, using the words “Approved by me,” and sign the same as such prosecuting attorney Section 2151, Burns' 1926. The same requirement as to approval of an affidavit filed in the city court, if used in the circuit or criminal court, is provided for all affidavits used to prosecute offenses in the circuit or criminal court.

[1] Appellant now contends that there was no affidavit of pleading on the part of the state in this cause in the circuit court, for the reason that the affidavit was not approved by the prosecuting attorney. The defendant did not file a motion to quash the affidavit. Had this been done, the motion should have been sustained. Cole v. State (1907) 169 Ind. 393, 82 N. E. 796;Robinson v. State (1912) 177 Ind. 263, 97 N. E. 929;Hicks v. State (1916) 185 Ind. 223, ...