Trisler v. State
| Decision Date | 17 June 1954 |
| Docket Number | No. 29154,29154 |
| Citation | 233 Ind. 479,120 N.E.2d 404 |
| Parties | TRISLER v. STATE. |
| Court | Indiana Supreme Court |
James F. Griggs, Franklin, Robert I. Marsh, Indianapolis, for appellant.
Edwin K. Steers, Atty. Gen., Frank E. Spencer, Deputy Atty. Gen., for appellee.
In the trial court appellant was charged by affidavit with assault and battery, on July 1, 1953.
Omitting caption and verification, the affidavit is as follows:
'Carl Miller, being duly sworn on his oath, says that he is informed and verily believes that on or about the 27th day of June, 1953, at the county of Brown, State of Indiana, Paul Trisler did then and there unlawfully touch another, to wit: One Earl Miller, in a rude, insolent and angry manner, contary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'
The affidavit was not indorsed 'Approved' by the Judge of the Brown Circuit Court, nor was there any court record indicating an approval of the affidavit by the judge.
On the date the affidavit was filed, a vacation warrant was issued for appellant's arrest on the charge, by the Clerk of the Circuit Court. It was returned by the sheriff 'Served as commanded' on July 2, 1953.
A motion to quash the affidavit was thereafter filed, the reason therefor being as follows
This motion was overruled the day it was filed and on the same date an amended motion to quash was filed, for the cause:
The amended motion to quash the affidavit was overruled the next day, September 18, 1953.
Upon his plea of not guilty defendant was tried by jury beginning on September 22, 1953, which resulted in a verdict of guilty as charged, that he be fined $100 and imprisoned at the Indiana State Farm for six months. The verdict contained a parenthetical statement immediately following the word 'months' as follows: '(suspended sentence recommended).'
A judgment was rendered on the verdict, ignoring the parenthetical recommendation noted, on September 25, 1953.
Appellant filed his motion for new trial on October 25, 1053, containing five specifications. (1) Error in overruling appellant's motion to quash the affidavit, because it was filed in vacation and was not approved by the judge. (2) Error in admitting in evidence state's Exhibits A and B. (3) The verdict is not sustained by sufficient evidence. (4) Error in refusing to give each instruction 8, 9 and 13 tendered by defendant. (5) Newly discovered evidence, which by the exercise of reasonable diligence he could not have discovered and produced at the trial.
At common law and in Indiana until 1905, all prosecutions for public offenses were required to be instituted by indictment or information. In 1905 the legislature authorized the prosecution of all public offenses, except treason and murder, by affidavit filed in term time, except when the grand jury is in session or a prosecution for the same offense is pending. Acts 1905, Chap. 169, Sec. 118, page 611. By the next section this law required that the prosecuting attorney approve the affidavit using the words 'approved by me' and sign the same as such prosecuting attorney. Sec. 119, page 611.
This law was amended by the Acts of 1927, in which the exception 'when the grand jury is in session' was eliminated, and the following paragraph was added: 'And such affidavit may be filed in vacation time as in term time, but only with the approval of the judge of such court, * * *.' Acts 1927, Chap. 132, Sec. 4, page 415. The law as so amended is now Secs. 9-908, 9-909, Burns' 1942 Repl.
The law with respect to the necessity for the approval indorsement of the prosecuting attorney has been considered by this court in McSwane v. State, 1929, 200 Ind. 548, 165 N.E. 319, 320. In deciding the question so presented we said:
The McSwane case was considered by this court recently, in Mattingly v. State, 1952, 230 Ind. 431, 104 N.E.2d 721, in which it was partially overruled. But that part quoted above was approved by the statement, 230 Ind. at page 435, 104 N.E.2d at page 722, as follows:
The legislative requirement that the prosecuting attorney endorse his approval of an affidavit by which he seeks to charge a defendant with a public offense, Sec. 9-908, Burns' 1942 Repl., is analogous to the legislative requirement that when such an affidavit is filed in 'vacation time' it may be so filed 'only with the approval of the judge' as specifically required by the authorizing statute, Sec. 9-908, Burns' 1942 Repl. It should be governed by the same rule of law.
About this proposition the state contends that while the statute requires when such an affidavit is filed in vacation it must be done with the approval of the judge, there is no statutory requirement that the judge 'sign or mark the affidavit in any way, and therefore there is no such defect apparent on the face of the affidavit.' Of course the court could not approve the affidavit orally, for a court of record, can speak only by the record....
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De Hart v. Blande
...415. Prior to the enactment of this statute, the state was required to prosecute all crimes by indictment or information. Trisler v. State, Ind.1954, 120 N.E.2d 404. By this statute the General Assembly expressly withheld jurisdiction or power from the circuit and criminal courts to prosecu......
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