Trout v. The State

• Court: Supreme Court of Indiana
• Citation: 8 N.E. 618,107 Ind. 578
• Docket Number: 13,380
• Parties: Trout v. The State
• Decision Date: 08 October 1886

8 N.E. 618

107 Ind. 578

Trout v. The State

No. 13,380

Supreme Court of Indiana

October 8, 1886

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.

OPINION

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 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:

"1. Because the facts stated in the information do not constitute a public offence under the laws of Indiana.

"2. Because the information is not supported by a good affidavit, charging the same offence stated and charged in the information.

"3. Because the affidavit and information, in this cause, do not charge the same offence.

"4. Because the information alleges that the offence was committed on October 21st, 1886, and the affidavit charges an offence as having been committed on October 21st, 1885.

"5. Because the dates in the affidavit and information, fixing the time at which the said offence 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 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 ...