State v. Wilson

• Decision Date: 13 March 1901
• Docket Number: 19,291
• Citation: State v. Wilson, 156 Ind. 343, 59 N.E. 932 (Ind. 1901)
• Parties: The State v. Wilson
• Court: Indiana Supreme Court

59 N.E. 932

156 Ind. 343

The State v. Wilson

No. 19,291

Supreme Court of Indiana

March 13, 1901

From the Boone Circuit Court.

Reversed.

W. L Taylor, Attorney-General, J. B. Shelley, P. H. Dutch and A J. Shelley, for State.

Samuel R. Artman, for appellee.

OPINION

Monks, J.

Appellee was charged by affidavit and information with the crime of perjury.The assignment of errors calls in question the action of the court in overruling the demurrer to appellee's plea in abatement, and in sustaining appellee's motion to quash the affidavit and each count of the information.

It appears from the record that appellant was charged by affidavit and information, filed November 22, 1899, at the November term of the court below, with the crime of perjury that appellant was arrested on said charge, and on the next day, November 23rd, entered into a recognizance for his appearance to answer said charge.Afterwards, at the December term of said court, on January 24, 1900, an affidavit, properly sworn to on January 23, 1900, and an information in two counts, charging the same offense, in different language, were filed in said cause as an amended affidavit and information.Appellee's plea in abatement was filed January 24, 1900, after the amended affidavit and information were filed, and seeks to abate the action on the ground that the same cannot be prosecuted by affidavit and information.Section 1748 Burns 1894, § 1679 R. S. 1881 and Horner 1897, provides that all public offenses except murder and treason may be prosecuted by affidavit and information, when certain facts stated therein exist.Under said section there are four cases in which felonies, except murder and treason, may be so prosecuted.To render a plea in abatement to an affidavit and information charging a felony sufficient on demurrer, it must allege facts showing that such prosecution does not come within any one of said cases.Lankford v. State,144 Ind. 428, 430, 43 N.E. 444, and cases cited;State v. Drake,125 Ind. 367, 25 N.E. 434.

Under the facts disclosed by the record above stated, the plea in abatement to be sufficient on demurrer must allege facts showing not only that on November 22, 1899, at the November term of said court, when the first affidavit and information were filed, none of the conditions which authorized the prosecution of said felony by affidavit and information under § 1748 (1679), supra, existed, but, also, that none of such conditions existed on January 24, 1900, when the amended affidavit and information were filed.It is not sufficient that the plea in abatement shows that none of such conditions existed on one of said dates; it must show that none of them existed on either one of said dates.It may be that the plea in abatement alleges facts showing that such prosecution by affidavit and information was not authorized by said section, on November 22, 1899, when the first affidavit and information were filed, but no facts were alleged showing that such prosecution was not authorized by said section on January 24, 1900, when the second affidavit and information were filed.For this reason the plea in abatement was insufficient, and the court erred in overruling the demurrer thereto.

It appears from the affidavit and information that appellee had been a witness in an action brought by one Addison L. Howard v. John N. Sicks in the court below, to recover judgment for $ 100 for services alleged to have been rendered by said Howard for said Sicks in securing appellee as a purchaser for a farm owned by said Sicks."That upon the trial of said cause it became and was a material question, whether said Henry Wilson was able to purchase said farm of the said Sicks at the time it was alleged said Addison L. Howard procured said Henry Wilson to purchase said farm of said Sicks."And the said Henry Wilson, the appellee, was duly sworn as a witness at the trial of said cause on behalf of said Howard, and did then and there feloniously, wilfully, corruptly, and falsely testify in said cause in answer to questions substantially as follows: "Q.How much land do you own in Rush county?A.Sold out down there.Q.How much did you own?A. Thirty-four acres.Q.How much do you own now?A.Eighty acres we bought since.Q.How much do you owe on it?A.It will be over $ 1,000 on it.Q.What did the eighty acres cost you?A. $ 60 an acre.Q. $ 4,800?A.Yes sir.Q.And you owe $ 1,000 on it?A.We paid $ 4,600 for the eighty acres.Q.And you owe $ 1,000 on it yet?A.Yes sir."

It is alleged that appellee did not own and had not sold...