Trout v. The State
| Decision Date | 08 October 1886 |
| Docket Number | 13,380 |
| Citation | 8 N.E. 618,107 Ind. 578 |
| Parties | Trout v. The State |
| Court | Indiana Supreme Court |
From the Sullivan Circuit Court.
The judgment is affirmed, with costs.
J. T Hays, H. J. Hays, J. C. Briggs and W. C. Hultz, for appellant.
F. T Hord, Attorney General, S.W. Axtell, Prosecuting Attorney, J W. Shelton and J. S. Bays, for the State.
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 Folske, 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:
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 offence was committed on the 21st day of October, 1885, the information charged that it was committed on the 21st day of October, 1886. It is shown by the record that the affidavit was sworn to by the prosecuting witness on the 16th 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 offence, and the same offence 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 the 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 offence 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 offence, in the affidavit and in the information, is, that the written charge of such offence was not sufficiently certain. "That the * * * information does not state the offence with sufficient certainty," is the fourth statutory cause for which a defendant may move to quash an information. Section 1759, R. S. 1881. If the appellant had moved the trial court to quash the information in this case, it would have been error, under our decisions, to have overruled such motion. Dyer v. State, 85 Ind. 525; Murphy v. State, 106 Ind. 96, 5 N.E. 767.
In the case in hand, however, no motion to quash the information was made by ...
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