Parish v. State

• Decision Date: 20 December 1923
• Docket Number: No. 24353.,24353.
• Parties: PARISH v. STATE.
• Court: Indiana Supreme Court

194 Ind. 44

141 N.E. 786

PARISH

v.STATE.

No. 24353.

Supreme Court of Indiana.

Dec. 20, 1923.

Appeal from Circuit Court, Tipton County; James M. Purvis, Judge.

Daisy Parish was convicted of keeping a house of ill fame, and she appeals. Affirmed.

Othniel Hitch and George Burkhart, both of Indianapolis, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward Franklin White and Edward M. White, Deputy Attys. Gen., for the State.

MYERS, J.

[1] Appellant was prosecuted by affidavit first filed in the city court of Tipton, Ind., charging her with keeping a house of ill fame. Section 2357, Burns' 1914; Acts 1905, p. 584, § 460. From a judgment of conviction she appealed to the Tipton Circuit Court, where she moved to quash the affidavit. This motion was overruled. In the latter court there was a trial, verdict of guilty, and judgment on the verdict. On appeal to this court, she alleges error of the trial court in overruling her motion to quash.

The affidavit is challenged on the sole ground that the prosecuting attorney failed to indorse thereon “Approved by me,” and to sign the same as prosecuting attorney. No new affidavit was filed in the circuit court. Hence the question, and the only one for our consideration, is: Was the alleged omission fatal as against the motion to quash?

Tipton being a city of the fifth class, her mayor, by law, is required to perform the duties of a city judge. Section 8840, Burns' 1914; Acts 1905, p. 236, § 215. It must be conceded that the city court had jurisdiction to render the judgment it did, and that appellant had a right of appeal therefrom to the circuit court, “in the same manner as provided by law for appeals from justices of the peace.” Section 8843, Burns' 1914.

Following these preliminary remarks, we will give attention to section 1930, Burns' 1914, and for present purposes it may be read as follows: Any city judge, on complaint made on oath before him, charging any person with the commission of a misdemeanor, shall issue his warrant for the arrest of such person, and cause him to be brought, forthwith, before him for trial. It then provides for the serving of the warrant, and the taking of a recognizance, etc. It furnishes the method by which a city judge may obtain jurisdiction of the person and subject-matter of offenses known as misdemeanors in this state. The next section (1931) provides in a general way the form of affidavit to be used, but neither section 1930 nor 1931 suggests the necessity of the approval indorsement of the prosecuting attorney.

[2] The rule is well settled that all criminal prosecutions, commenced by affidavit in the circuit or criminal court in this state, must have the approval of the prosecuting attorney indorsed upon such affidavit in order to withstand a motion to quash. Cole v. State, 169 Ind. 393, 82 N. E. 796;Robinson v. State, 177 Ind. 263, 97 N. E. 929;Davy v. State (Ind.) 137 N. E. 553.

Counsel for appellant insist that, upon filing the affidavit in the circuit court, even in the manner shown, it was subject to a motion to quash for want of the prosecuting attorney's approval indorsed thereon, as required by section 1990, supra. Moreover, by analogy, it is argued that the same rule of construction and the same strictness of pleading is required in prosecutions originating before a city judge under section 1930, supra, as that demanded in actions commenced before a juvenile court under section 1648, Burns' Supp. 1921; Acts 1917, p. 341, § 2, amending section 1, Acts 1907, p. 266, which amended section 2, Acts 1905, p. 440. In this connection they cite the case of Pease v. State, 74 Ind. App. 572, 129 N. E. 337, and claim that the reasoning in that case supports their contention. It is true that an accusation must be made in the manner prescribed by law, but we are not advised that this court or the Appellate Court has ever held that an affidavit filed in the juvenile court must have the indorsed approval of the prosecuting attorney, and we express no opinion on the law pertaining to the procedure affecting juvenile courts.

In the Pease Case, it appeared that the defendant was prosecuted upon a statement not verified under oath, and because of that omission there was a noncompliance with the requirements of the statute. Therefore it was held that the juvenile court failed to acquire jurisdiction over the particular subject-matter, although the defendant appeared and proceeded to trial without objection. But such is not the case at bar. Here the affidavit was verified under oath as the statute requires. True, it did not have the approval indorsement of the prosecuting attorney, but that is a part of the procedure expressly provided only when it is sought to...