State v. Anderson

Decision Date24 April 1912
Docket NumberNo. 22,124.,22,124.
Citation98 N.E. 289,177 Ind. 437
PartiesSTATE v. ANDERSON et al.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Knox County; Orlando H. Cobb, Judge.

Isaac C. Anderson and others were prosecuted for trespass after warning, and, from a judgment for defendants granting a motion to quash the affidavit, the State appeals. Reversed, with directions to overrule motion, and for further proceedings.

Thomas M. Honan, Thomas H. Branaman, Edwin Corr, and Jas. E. McCullough, for the State. J. S. Pritchett and Wilhelm & Davenport, for appellees.

MONKS, J.

Section 2280, Burns 1908, makes it a misdemeanor for any one who “being about to enter unlawfully upon the enclosed or unenclosed land of another shall be forbidden so to do by the owner or occupant or his agent or servant *** and shall thereafter enter upon such land. ***” Appellees were prosecuted before a justice of the peace for trespass under said section, and were convicted. They appealed to the court below, where their motion to quash the affidavit was sustained by the court, and final judgment rendered in their favor. The state insists that the court erred in sustaining said motion to quash.

[1] No brief has been filed on behalf of appellees, but we are informed by the brief of the Attorney General that the motion to quash the affidavit was sustained by the court on the ground that the land was not sufficiently described. The land is described in the affidavit as being in Knox county, Ind., and as the “land known as the Sandborn Children's Park, of which these affiants,” Lawrence Koeder, Nelson Carrol, and Jas. A. Waggoner, “are the occupants and trustees.” This was a sufficient description of the land. State v. Burns, 123 Ind. 427, 24 N. E. 154;Winlock v. State, 121 Ind. 531, 23 N. E. 514;State v. Young, 21 Ind. App. 546, 52 N. E. 760;State v. Smith, 7 Ind. App. 166, 34 N. E. 127;State v. Murphy, 7 Ind. App. 44, 34 N. E. 248;Ostler v. State, 3 Ind. App. 122, 124, 29 N. E. 270;State v. Bridgewater, 171 Ind. 1, 5, 85 N. E. 715.

[2] After the motion to quash was made by appellees and before the same was ruled upon by the court, the prosecuting attorney asked leave to file an amended affidavit, to the granting of which appellees objected. The court sustained said objection, and denied the request of the prosecuting attorney to amend said affidavit, to which ruling of the court the prosecuting attorney excepted. The court erred in refusing said permission to amend said affidavit. Section 2043, Burns 1908; State v. Simpson, 166 Ind. 211, 214, 76 N. E. 544, 1005. The court said in the case cited (pages 214, 215, of 166 Ind., page 545 of 76 N. E.): “Such amendments are expressly authorized as a matter of right at any time before the defendant pleads, and, upon being made, the affidavit must be sworn to. Section 1804, Burns 1901; section 1735, R. S. 1881. The making of such amendments in this case did not operate to terminate the prosecution and discharge the defendants from custody. The quashing of an affidavit and information or an indictment does not ipso facto terminate...

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1 cases
  • State ex rel. Hert v. Niblack
    • United States
    • Indiana Supreme Court
    • October 2, 1963
    ...and affidavit.' Section 1829, Burns' Ann.St.1901 [§ 1760 R.S.1881].' This language was repeated by this court in State v. Anderson (1912), 177 Ind. 437, 439, 98 N.E. 289. Thus, the Special Judge had continuing jurisdiction over the cause, and the filing of the affidavit did not require it t......

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