The State v. Boswell

• Decision Date: 29 January 1886
• Docket Number: 12,764
• Citation: 4 N.E. 675,104 Ind. 541
• Parties: The State v. Boswell
• Court: Indiana Supreme Court

4 N.E. 675

104 Ind. 541

The State v. Boswell

No. 12,764

Supreme Court of Indiana

January 29, 1886

Petition for a Rehearing Overruled March 20, 1886.

From the Huntington Circuit Court.

Judgment affirmed.

E. C Vaughn, Prosecuting Attorney, B. M. Cobb, C. W. Watkins and J. G. Ibach, for the State.

J. B Kenner, J. I. Dille and D. Turpie, for appellee.

OPINION

Elliott, J.

The first question which the record presents is: Can the State in any case proceed by information against a person accused of a felony, or must the proceeding be by indictment?

It is assumed in the argument of appellee's counsel, that the provisions of the Federal Constitution respecting the presentment of charges of felony and the mode of trial, apply to prosecutions under the laws of the State, and prohibit prosecutions by information. This assumption can not be made good. The Federal and State courts, without diversity of opinion, have long held that the provisions of the Federal Constitution do not apply to the States, unless the States are referred to by clear implication or express words. The law upon this point is settled, and has long been settled. Barron v. Mayor, etc., 7 Peters, 243 (32 U.S. 243, n.); Fox v. State, 46 U.S. 410, 5 HOW 410, 12 L.Ed. 213; Twitchell v. Commonwealth, 74 U.S. 321, 7 Wall. 321, 19 L.Ed. 223; Pearson v. Yewdall, 95 U.S. 294, 24 L.Ed. 436; Edwards v. Elliott, 88 U.S. 532, 21 Wall. 532, 22 L.Ed. 487; Baker v. Gordon, 23 Ind. 204; Butler v. State, 97 Ind. 378; Cooley Const. Lim. (5th ed.), 26.

Where the States are named, the provisions thus directly made applicable to them control in State as well as National affairs, but it is otherwise where the States are not named. Kring v. Missouri, 107 U.S. 221, 27 L.Ed. 506, 2 S.Ct. 443; Tennessee v. Davis, 100 U.S. 257, 25 L.Ed. 648; Campbell v. Dwiggins, 83 Ind. 473, 481.

It is quite clear that the people of Indiana did not understand that the Constitution of the United States governed prosecutions by the State for felonies, for they provided in their Constitution that the grand jury system might be modified or abolished, and our court as early, at least, as 1857, declared that the Federal Constitution did not govern the States except in those instances where they were named. Lake Erie, etc., R. R. Co. v. Heath, 9 Ind. 558, see p. 559.

The fourteenth amendment to the United States Constitution does name the States, and its provisions are, therefore, applicable to them. Kring v. Missouri, supra; Tennessee v. Davis, supra. That amendment does prohibit the States from depriving "any person of life, liberty or property without due process of law," but it does not prohibit the States from proceeding in felony cases by information when that procedure is authorized by the State Constitution. This question has recently been discussed by the Supreme Court of the United States, and needs no further discussion from us. Hurtado v. California, 110 U.S. 516, 28 L.Ed. 232, 4 S.Ct. 111; Kalloch v. Superior Court, 56 Cal. 229; People v. Hurtado, 63 Cal. 288; Rowan v. State, 30 Wis. 129 (11 Am. R. 559); State v. Barnett, 3 Kan. 250. There are many cases declaring a general principle which gives full and sure support to the conclusion reached by the courts in the cases cited. Munn v. Illinois, 94 U.S. 113, 24 L.Ed. 77; Walker v. Sauvinet, 92 U.S. 90, 23 L.Ed. 678; Kennard v. Louisiana, 92 U.S. 480, 23 L.Ed. 478; Davidson v. New Orleans, 96 U.S. 97, 24 L.Ed. 616; Missouri v. Lewis, 101 U.S. 22, 25 L.Ed. 989; Loan Ass'n v. Topeka, 87 U.S. 655, 20 Wall. 655, 22 L.Ed. 455; Brown v. Board of Levee Commissioners, 50 Miss. 468.

It seems clear to us that one who is tried and convicted upon an information provided for by a constitutional State statute is not deprived of his liberty without due process of law, for we perceive no reason for doubting the soundness of the proposition that proceedings founded upon an information provided for by a legally enacted statute do constitute due process of law. Our own decisions have repeatedly sustained the validity of proceedings founded upon informations, and they, therefore, affirm the principle which supports the proposition to which we here declare our assent.

The remaining questions in the case arise upon the ruling of the court on a demurrer addressed by the State to a plea in abatement filed by the defendant. The substance of the plea is this: On the 18th day of July, 1885, an affidavit was filed charging the appellee with the offence of assault and battery with intent to kill. On this charge he was recognized to appear at the ensuing term of the Huntington Circuit Court; that term of court convened on the 26th day of October, 1885, and on that day the grand jury were empanelled and remained in session one week, when they were discharged without having returned an indictment against the appellee, and after the discharge of the grand jury the prosecuting attorney filed the information against the appellee on which this prosecution is founded. The offence charged in the information is the same as that upon which the appellee was recognized to appear at the circuit court, and the information was filed during the term at which the appellee's recognizance required him to appear.

The controlling question in this branch of the case is this: Can an information be rightfully lodged against a defendant at a term of court to which he was recognized to appear, but after the grand jury had been discharged without finding an indictment against him?

A written accusation made by a competent officer or tribunal must be preferred against one brought to trial for a felony for without such an accusation a prosecution would be in violation of the Federal and State Constitutions, as, in the absence of such an accusation, there could be no due process of law. It is not enough that there is a written accusation, but it must also be one preferred by an officer or tribunal authorized by law to prefer it. A citizen may cause the arrest of an accused person upon an affidavit, but the accused can not be put to final trial upon a charge of felony on such an affidavit, although it may authorize a preliminary examination and empower a court to compel the person accused of crime to enter into a recognizance. The ancient method of accusing a man of felony was by an indictment found by a grand jury, and this is still the exclusive method in many jurisdictions, and in ours is the usual but not the exclusive method. While the procedure by indictment is the ordinary one, our Constitution authorizes the employment of another method, and our statute, proceeding upon that authority, provides for the employment of the method of prosecuting by information, but the latter method can only be adopted in the cases provided by statute. Indictment is yet the usual method; that by information is not. It is clear from our statutes and our decisions that prosecutions for felony must be by indictment, except in the cases where the statute expressly provides that they may be by information. The inquiry, therefore, in all cases where the right to proceed by information is properly questioned, must be: Is the case one which the statute authorizes the State to prosecute by...