74 Ind. 188 | Ind. | 1881
This was a prosecution by affidavit and information, against the appellant and one Emanuel Fox, for
Error is assigned upon the overruling of the motion to quash.
The portion of the information which was designed to show the authority or power of the’court to try the appellant upon affidavit and information, without indictment, was-as follows : “And this court is further informed, that said Emanuel Fox and August Iter, named in the affidavit of John Case, herewith filed, are now in the custody of the sheriff' of Allen county, in the State of Indiana, and confined in the-jail of said county, on a charge of robbery, as set forth in the affidavit of John Case; and that an indictment was-found by the grand jury and quashed, and that said grand jury is not now in session.”
The statute on the subject provides, among other things, “That felonies may be prosecuted in the circuit and criminal courts, by affidavit and information, in the following cases :
“First. When any person is in custody on a charge of felony, and no grand jury is in session.
“Second. When an indictment has been found by the grand jury, and has been quashed.” Acts 1879, p. 143.
The averments of the information do not, as we think,, bring the case within the statute. There was an apparent attempt made, by the averments, to bring the case within both of the ábove specifications, but they fail to bring it within either of them.
The language of the second clause of the statute, above quoted, “When an indictment has been found by the grand jury,” evidently means, when an indictment has been found by the grand jury, for the felony, on a charge of which the accused is in custody. See Davis v. The State, 69 Ind. 130.
The information alleges “that an indictment was found by the grand jury, and quashed.” But for what the indictment was found, and against whom, does not appear. It may.
It remains to inquire whether the averments bring the case within the first! It sufficiently appears that the appellant was' in custody on a charge of the offence stated in the information. But this is not sufficient to authorize a prosecution for a felony by affidavit and information. There must have been, in order to bring the case within the first clause, no grand jury in session, at the time of filing the affidavit and information. It does not appear from the information, as we think, that no grand jury was then in session. The language of the information is, “that an indictment was found by the grand jury, and quashed, and that said grand jury is not now in session.” The obvious and unmistakable meaning of this is, that the grand jury who found the indictment was not then in session. When the indictment was found does not appear ; and the allegation can not be held to mean that no grand jury was in session at the time of filing the information.
The information does not show such a state of facts as authorizes the prosecution by affidavit and information, and the motion to quash should have been sustained.
The judgment below is reversed, and the cause remanded.
The clerk will give notice for the return of the prisoner .from the state-prison.
