Robinson v. State
| Decision Date | 15 March 1912 |
| Docket Number | 22,051 |
| Citation | 97 N.E. 929,177 Ind. 263 |
| Parties | Robinson v. State of Indiana |
| Court | Indiana Supreme Court |
From Allen Circuit Court; Edward O'Rourke, Judge.
Prosecution by the State of Indiana against Delos Robinson. From a judgment of conviction, the defendant appeals.
Affirmed.
Philip B. Colerick and Samuel M. Hench, for appellant.
Thomas M. Honan, Attorney-General, Thomas H. Branaman, Edwin Corr and James E. McCullough, for the State.
Appellant was convicted of the crime of robbery, under the provisions of § 1 of the act of March 5, 1909 (Acts 1909 p. 170) and was given an indeterminate sentence of imprisonment in the state reformatory for a period of not less than five nor more than fourteen years, fined and disfranchised.
The section of the act in question defines the crime of robbery and provides a penalty such as was imposed in this case. It also provides that the perpetration of an assault, or assault and battery with intent to commit robbery, shall carry the same penalty as provided for robbery.
The affidavit on which appellant was tried and convicted contains three counts, charging appellant with assault and battery with intent to commit robbery, with robbery and with petit larceny.
Appellant assails the affidavit in this court for the first time, by assigning as error that the affidavit and each count does not state facts sufficient to constitute a public offense.
No complaint is made of any defect in the charging parts of the first and second counts of the affidavit, which charge respectively, assault and battery with intent to commit robbery and robbery; and manifestly they do formally and properly allege facts constituting those offenses and their commission by appellant. If not indeed directly conceded, this is not denied by appellant's counsel, but under this assignment of error they claim that the affidavit will not sustain the conviction, because the record fails to show that it was indorsed "approved by me" by the prosecuting attorney, as required by § 1990 Burns 1908, Acts 1905 p. 584. This court held in Cole v. State (1907), 169 Ind. 393, 82 N.E. 796, that such an omission is fatal to an affidavit on a motion to quash, and counsel rely upon that case to sustain their contention in this. If the defect which is made the basis of appellant's claim had in fact existed, and appellant had interposed a timely motion to quash, it would, under this decision, have been error to overrule it. But no such motion was made. Defects and irregularities, however, which will compel an indictment or affidavit to succumb to a motion to quash, may not be sufficient to overthrow it when the assault is made in this court for the first time. In the latter case the indictment or affidavit can only be successfully assailed when it fails to state facts sufficient to constitute a public offense. Trout v. State (1886), 107 Ind. 578, 8 N.E. 618; Pattee v. State (1887), 109 Ind. 545, 10 N.E. 421; Chandler v. State (1895), 141 Ind. 106, 39 N.E. 444; Barnett v. State (1895), 141 Ind. 149, 40 N.E. 666; Naanes v. State (1896), 143 Ind. 299, 42 N.E. 609; Pace v. State (1899), 152 Ind. 343, 53 N.E. 183; Elliott, App. Proc. § 488; Ewbank's Manual §§ 136, 283.
Such an assignment of error will not reach mere uncertainty or a defective statement of the facts, or a failure to observe technical formalities which could have been corrected in the trial court before trial if the court's attention had been called thereto. The record in the case shows that the prosecuting attorney appeared in open court in person, and filed the affidavit which is set out in the record. It does not appear from the record that the affidavit was not properly indorsed, or that it was, for the back, which usually contains the title and indorsement, is not set out. If, in fact, it 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, 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. ...
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