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Vogel v. The State. Rissel v. The State.

tion, to wit, selling and dealing out to B. two gills of whiskey, and receiving therefor twenty cents,” &c. The plea of the defendant was, “that he is guilty as therein charged, but he says that on the said 17th day of February, 1867, he was duly licensed to retail intoxicating liquors under the act of March 5th, 1859.” And thereupon, without any trial, a fine of five dollars was assessed by the court, and judgment entered thereon, after overruling a motion by the defendant in arrest of judgment based upon the ground that the information did not state sufficient facts to constitute a public offense.

The only error assigned is, that the motion in arrest was · overruled.

There is no argument for the State. The information seems to have been a copy of one which was held good by this court in Voglesong v. The State, 9 Ind. 112. But since · that case the legislature has passed several acts which we: think very materially affect the question. Now, only those who are licensed can lawfully engage, on any day, in thebusiness of selling liquors in less quantity than a quart, without incurring a penalty. Those who are so licensed are subject to a special penalty for doing it on Sunday, which is more severe than that which the law imposes upon other violations of the Sabbath. 1 G. &. H. 614; Acts Spec. Sess. 1865, p. 197.

The obvious purpose of the pleader was to charge an or-dinary violation of the Sabbath, punishable as a violation. of the act of 1855 for the protection of the Sabbath. But it is impossible to learn from the information whether the defendant violated that act or the act of 1865, supra. Indeed, if he had no license to sell liquor, then the act charged was unlawful on any day and punishable by a higher pen-alty than as a mere violation of the Sabbath. The sum of the matter is, that it could not be ascertained from the information what statute the defendant had violated, inasmuch as it was not alleged whether or not he had a license;;

Vol. XXXI.-5

The State v. Morgan.

and the court could not upon a simple plea of guilty have known what punishment to assess. If licensed, the fine could be any sum not less than ten dollars vor more than fifty dollars; whereas an ordinary violation of the Sabbath might be punished by a fine in any sum from one dollar to ten dollars. From necessity, an information which is so uncertain that upon a plea of guilty the court cannot know what punishment it may affix, is bad on motion in arrest of judgment. It charges no particular public offense, and the second clause of section 144 of the criminal code settles the question.

Reversed and remanded, with directions to sustain the motion in arrest of judgment.

GREGORY, J., dissented.
J. Schwartz, for appellants.
D. E. Williamson, Attorney General, for the State.

THE STATE 2. MORGAN.

'Fugitiva from JUSTICE.— Appeal.--No appeal by the State to the Supreme

Court lics from the ruling of a judge discharging from arrest a prisoner brought before him for examination as provided by the act of March 9th, 1867 (Acts 1867, p. 126), “to regulate the arrest and surrender of fugitives from justice from other states and territories."

APPEAL from the Judge of the Cass Common Pleas.

RAY, J.-Under a warrant issued by the Governor of this State, upon the requisition of the Governor of the State of New York, Morgan was taken before the judge of the Court of Common Pleas of Cass County, for examination as provided by the act of March 9th, 1867, p. 126,“to regulate the arrest and surrender of fugitives from justice from other states and territories." The appellee was discharged from arrest by the judge. The State brings the case here

The State v. Buxton.

upon appeal; but the act makes no provision for a review in this court, and we must, therefore, on the motion of the appellee, dismiss the appeal.

There is nothing in the claim by appellant, that the act authorizing the State to reserve a question in a criminal action includes this case. 2 G. & H. 425, secs. 149, 150. This is neither a trial upon a criminal charge nor a proceeding embraced under the title of “criminal pleading and practice.” The appeal in the case of Robinson v. Flanders, 29 Ind. 10, was from the ruling of the judge of the circuit court upon a writ of habeas corpus. Appeal dismissed.

GREGORY, J., expresses no opinion.

J. Q. Stratton, J. M. Pratt, McConnell & Winfield, Turpie of Baldwin, and D. E. Williamson, Attorney General, for the State.

D. D. Pratt, for appellee.

THE STATE v. BUXTON.

31 139

67 81

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CRIMINAL LAW.—Justice of the Peace.- Obstrueting Highway.- Affidavit.

Prosecution before a justice of the peace for obstructing a highway. The affidavit charged, "that on or about, &c., at the said county of Jefferson, in the State of Indiana, one A. did unlawfully obstruct a highway then and there situate, being the highway running nearly north and south through section nine, town three, range eight east, from the Scaffold Lick and Kent road to the Lexington and Paris road, in said county and State, by then and there unlawfully erecting fences across said highway, as affiant is in

formed and believed." Held, that the highway was sufficiently described. Held, also, that it was enough to charge that the obstruction was within the

jurisdiction of the court, and not necessary to state the particular place

where it was erected on the road. Held, also, that the fact that the charge was made on information and belief

did not render the affidavit defective.

The State v. Buxton.

Held, also, that the mistake of the draftsman in writing “believed," instead of

believes, was immaterial.

APPEAL from the Jefferson Common Pleas.

Gregory, J.–This was a prosecution commenced before a justice of the peace for obstructing a highway.

The affidavit charges, “that on or about the 15th day of August, 1868, at the said county of Jefferson, in the State of Indiana, one James B. Buxton did unlawfully obstruct a highway, then and there situate, being the highway running nearly north and south through section nine, town three, range eight east, from the Scaffold Lick and Kent road to the Lexington and Paris road, in said county and State, by then and there unlawfully erecting feuces across said highway, as affiant is informed and believed."

The court below,on motion of the defendant,quashed the affidavit and dismissed the case. The State appeals.

It is claimed, that the affidavit is defective in three particulars: first, that the road is not sufficiently described; second, that the particular place on the road where the obstruction was erected ought to have been stated; and lastly, that the charge is made on information and belief.

There is nothing in these objections.

The road is described in its beginning, terminus, and course; this is sufficient.

It was enough to charge that the obstruction was within the jurisdiction of the court.

The form given in the statute is this: “A— B- swears (or affirms) that on or about the — day of — 18—, at said county, C, D, as affiant verily believes (here state the offense).” 2 G. & H. 642, sec. 31. It is claimed, that this belief must be founded on personal knowledge of the facts. If such had been the intention of the legislature, the words “as affiant verily believes” ought to have been omitted.

It frequently occurs that the perpetrator of crime is convicted on the testimony of a number of witnesses swearing to different parts of the transaction constituting the body of the offense. No one person could swear on personal

Louden, Administrator, v. James and Others.

knowledge that the accused was guilty, and yet any one of the numerous witnesses might with a clear conscience have made the affidavit for the arrest.

Some objection is made to the affidavit on the ground that the word “believed” is in the past tense, but this was evidently a mistake in the draftsman. The affidavit itself shows that the affiant was speaking as to his then present belief.

Judgment reversed, with costs; cause remanded, with direction to overrule the motion to quash the affidavit.

D. E. Williamson, Attorney General, and E. R. f. J. L. Wilson, for the State.

H. W. Harrington and C. A. Korbly, for appellee.

LOUDEN, Administrator, v. JAMES and Others.

31 69 134 187

31 69 154 423

Descent.–Surviving Second Wife without Children.—Where a man dies, leaving

surviving him a widow, a second or other subsequent wife by whom he has no children, and children by a previous wife, the widow, as against creditors, takes the same share of his real estate, by descent, in fee simple, as if a first wife; and at her death this fee simple descends to her said husband's children free from the demands of his creditors.

APPEAL from the Posey Common Pleas.

FRAZER, J.-Enoch R. James died, intestate, seized of real estate, leaving surviving him a widow, a second wife, by whom he had no children, and also children and the descendants of children by a previous marriage. Partition was made of his real estate, and a portion was set off to the widow. She has since died, and now the administrator de bonis non applies for an order to sell the land so set apart to the widow, to make assets to pay debts of the intestate.

These facts appearing by the complaint, a demurrer there

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