State v. McKee

• Decision Date: 17 February 1887
• Citation: 109 Ind. 497,10 N.E. 405
• Parties: State v. McKee.
• Court: Indiana Supreme Court

109 Ind. 497

10 N.E. 405

State

v.McKee.

Supreme Court of Indiana.

February 17, 1887.

Appeal from circuit court, Knox county.

W. A. Cullop, for appellant. Reily & Niblack, for appellee.

ZOLLARS, J.

Appellee was convicted and fined by a justice of the peace on a charge of malicious trespass. A transcript purporting to be, and which is treated by counsel as being, a transcript of the proceedings in the cause before the justice, was filed by that officer in the office of the clerk of the circuit court within the time allowed by law for appeals in such cases. In the circuit court, the state, by its prosecuting attorney, moved to dismiss the appeal. As we learn from the brief in behalf of appellant, that motion was based upon the ground alone that the transcript of the proceedings in the justice's court does not affirmatively show that appellee proved an appeal and filed a recognizance as required by law. There was no showing in support of the motion that an appeal had not been in fact properly taken, the proper bond filed, and that bond sent up with the transcript, and filed in the office of the clerk of the circuit court. If an appeal was in fact taken, the failure of the justice to note that fact in his docket is not a sufficient cause for dismissing the appeal. In the absence of anything to the contrary, we must presume in favor of the jurisdiction of the circuit court, by presuming that the case came into that court by a regular appeal. Unruh v. State, 105 Ind. 117, 4 N. E. Rep. 453, and the cases there cited. Upon the record before us, this court cannot determine that the court below erred in overruling the motion to dismiss the appeal.

On motion of appellee, the circuit court quashed the affidavit. That ruling is assigned as error. Does the affidavit sufficiently charge a “malicious trespass,” as that offense is defined by the statute? Section 1955, Rev. St. 1881, provides that “whoever maliciously or mischievously injures, or causes to be injured, any property of another, or any public property, is guilty of malicious trespass, and, upon conviction thereof, shall be fined not more than twofold for the value of the damage done, to which may be added imprisonment in the county jail,” etc. It will be observed that the fine provided for a violation of the statute is measured by the amount of the “damage done.” It may not be more than double that amount. In order that the court may determine the amount of fine to be imposed, the amount of damages done must be alleged and proved. The damages, too, must result from an injury to the property, and hence it must be made to appear by the affidavit, information, or indictment that the property was injured. If no injury is shown, no crime as defined by the statute is shown; and if injury to the property be shown, but no amount of damage resulting from that injury, the affidavit, information, or indictment is insufficient, because the court cannot measure the fine to be imposed, and hence cannot pronounce the judgment provided by the statute. These things must be so shown by the affidavit, information, or indictment that the defendant may be apprised of who he is to meet. Brown v. State, 76 Ind. 85;State v. Cole, 90 Ind. 112;Sample v. State, ...