178 Ind. 448 | Ind. | 1912
Appellant was convicted by a jury on an affidavit charging him with perjury. A plea in abatement was filed, to which a demurrer was sustained, and this action of the trial court is assigned as error.
The ground of demurrer was “that the facts stated in said plea * * * are not sufficient in law to constitute a defense to said action.” It is conceded by the Attorney-General that the demurrer ivas insufficient in form, but he contends that there was no harmful error, for the reason that the plea did not state facts sufficient to abate the action. In the plea it is alleged that the affidavit was filed in the Knox Circuit Court on May 31, 1911, alleging therein that the crime charged was committed February 8, 1911; that afterwards, on April 10, 1911, the grand jury of Knox county convened, and was in session for ten days, and failed to indict appellant, and that while the grand jury was in session affiant was under arrest on an affidavit filed before the mayor of Vincennes, on the identical charge, and was released on a bond for $1,000 for his appearance before the mayor for a preliminary hearing.
In Graves v. State (1889), 121 Ind. 357, 23 N. E. 155, this court said: ‘ The rule declared by our. own and other courts is, that where evidence which is objectionable is permitted to go to the jury without objection, and it is such as will prove a fact, a verdict founded on it will be sustained. ’ ’
In Compton v. Ivey (1877), 59 Ind. 352, it was held that title to real estate may be proved by parol, when the evidence is not objected to.
In this case, the State proved, by parol testimony, facts
Note.—Reported in 99 N. E. 732. See, also, under (1) 12 Cyc. 360; (3) 12 Cyc. 914; (4) 12 Cyc. 292, 295; (5) 30 Cyc. 1430; (6) 12 Cyc. 846, 847; (7) 12 Cyc. 812; (8) 30 Cyc. 1448, 1449. As to indictments for perjury, see 124 Am. St. 654.