27 Ind. 47 | Ind. | 1866
The appellant was prosecuted in the court below for illegal voting, at the October election in the year 1866. The information and affidavit charge the offense thus: “ Said Jacob Luther, then and there being, did offer
The criminal code provides that “ no person prosecuted for any offense punishable by fine only, shall be tried without being personally present, unless some responsible person, approved by the court, undertakes to bo bail for stay of execution, and payment of the fine and costs that may be assessed against the defendant. Such undertaking must be in writing, and is as effective as if entered after judgment.” 2 G. & H., § 95, p. 413.
It is further provided that “ when it appeal’s, at any' time before verdict or judgment, that a mistake has been made in charging the proper offense, the defendant shall not be discharged, if there appears to be good cause to detain Mm in custody, but the court must recognize him to answer to the offense.” Ib., § 107, p. 416. It is claimed that under these provisions an absent defendant has no right to move to quash the information, or even in arrest of judgment. It is urged that the latter section would bo rendered nugagatory if the court, in the absence of the defendant, should sustain a motion to quash. The information in this case follows the affidavit; if the former is bad, the latter is also bad. If the affidavit charges no crime, it is difficult to understand how the Common Pleas Court could recognize the
The judgment is reversed, and the cause remanded to said court, with directions to hear the motion of the defendant to quash the information, and for further proceedings.