Toops v. State

• Decision Date: 13 October 1883
• Docket Number: 11,011
• Citation: 92 Ind. 13
• Parties: Toops v. The State
• Court: Indiana Supreme Court

92 Ind. 13

Toops v. The State

No. 11,011

Supreme Court of Indiana

October 13, 1883

Petition for a Rehearing Overruled Dec. 15, 1883.

From the Clinton Circuit Court.

Judgment affirmed.

J. N Sims, for appellant.

W. R Hines, Prosecuting Attorney, and W. A. Staley, for the State.

OPINION

Elliott, J.

It is objected to the sufficiency of the affidavit on which the information is based, that the matters are stated upon information and belief. There is no force in this objection. It is well settled that it is not necessary that the affidavit should show that the statements are made from the affiant's knowledge, and that it will be sufficient if it appear that they are made upon information and belief. Franklin v. State, 85 Ind. 99; State v. Buxton, 31 Ind. 67; Curry v. Baker, 31 Ind. 151; State v. Ellison, 14 Ind. 380; Simpkins v. Malatt, 9 Ind. 543.

It is said that the ditch which appellant is charged with having obstructed is not described with sufficient certainty. It is so described as to fully identify it and clearly enable the accused to know what particular ditch he was charged with having obstructed, and this is all that the law requires. A detailed and minute description of a highway or other place alleged to have been obstructed is never necessary; it is sufficient if the description be so specific and certain as to inform the defendant, with reasonable certainty, of the character and location of the place the prosecution charges him with having obstructed.

The charge in the information is that the appellant did unlawfully obstruct and injure a public ditch, described, "by unlawfully removing a tile therefrom, thereby causing said ditch to fill up with mud, dirt, and other substances, and did then and there and thereby unlawfully divert the water in said ditch from its proper channel, and did unlawfully injure and obstruct and destroy said ditch." We think this clearly charges a public offence under section 2153 of the criminal code (R. S., section 2153), for the language employed is substantially that of the statute.

The verdict of the jury reads as follows: "We, the jury, find the defendant guilty of obstructing, injuring, destroying a work constructed in pursuance of the law of the State for the drainage of lands as charged in the affidavit and information, and that be fined thirty dollars." This verdict is sufficient, for it finds the defendant guilty as charged in the affidavit and information, and this statement would have been enough without the other statements. These specific statements are not inconsistent with the general one, and do not, therefore, impair its force. Verdicts of juries are to receive a fair and reasonable construction, and are not to be disregarded because of mere orthographic errors, nor for mistakes in language, or mere technical defects.

Where the evidence shows that the drain or ditch was constructed under the order of the board of county commissioners, it entitles the...