Trout v. State

• Decision Date: 08 October 1886
• Citation: 107 Ind. 578,8 N.E. 618
• Parties: Trout, Jr., v. State.
• Court: Indiana Supreme Court

107 Ind. 578

8 N.E. 618

Trout, Jr.,

v.State.

Supreme Court of Indiana.

October 8, 1886.

Appeal from Sullivan circuit court.

Hays & Hays, J. C. Briggs, and Wm. C. Hultz, for appellant. S. W. Axtell and Shelton & Bays, for appellee.

Howk, C. J.

Upon affidavit and information the appellant herein was prosecuted, tried by a jury, and found guilty of an assault and battery with intent to commit rape upon one Augusta Folska, and his punishment was assessed at imprisonment in the state prison for the term of seven years, and a fine in the sum of $400. Over his motion in arrest, the court rendered judgment against appellant upon and in accordance with the verdict of the jury. The overruling of his motion in arrest of judgment is the only error assigned here by the appellant.

This motion was in writing, and the appellant assigned therein the following causes for the arrest of judgment, namely: “(1) Because the facts stated in the information do not constitute a public offense under the laws of Indiana; (2) because the information is not supported by a good affidavit charging the same offense stated and charged in the information; (3) because the affidavit and information in this cause do not charge the same offense; (4) because the information alleges that the offense was committed on October 21, 1886, and the affidavit charges an offense as having been committed on October 21, 1885; (5) because the dates in the affidavit and information, fixing the time at which the said offense is alleged to have been committed, are different dates.”

It will be readily seen from these written causes that appellant's motion in arrest was predicated solely upon the fact, apparent in the record, that while the affidavit charged that the offense was committed on the twenty-first day of October, 1885, the information charged that it was committed on the twenty-first day of October, 1886. It is shown by the record that the affidavit was sworn to by the prosecuting witness on the sixteenth day of January, 1886, and that on the same day such affidavit, and the information founded thereon, were both filed in the court below. The information shows upon its face that it was intended to charge the appellant therein and thereby with the commission of a past offense, and the same offense whereof the prosecuting witness, “Augusta Folske, has this day complained on oath.” Construing the affidavit and information as constituting a single criminal charge, and taking into consideration the date of their filing as heretofore stated, it seems clear to us that the use of the figures “1886,” in the charging part of the information, is a palpable clerical error; and that the date of the commission of the offense charged was correctly stated in the affidavit, but not in the information.

The utmost that can be said, however, of the legal effect of the difference between the dates given of the commission of the offense in the affidavit and in the information is that the written charge of such offense was not sufficiently certain. “That the * * * information does not state the offense with sufficient certainty” is the fourth statutory cause for which a defendant may move to quash an information. Section 1759, Rev. St. 1881. If the appellant had moved the trial court to quash the...