Sovine v. StateSovine v. State
- Reporters:
- Before:
- Niblack
This was a prosecution for grand larceny upon affidavit and information.
The affidavit, which was filed on the 23d day of April, 1881, charged Eugene Sovine with having, on the 8th day of November, 1880, at the county of Allen, and State of Indiana, fеloniously stolen, taken and carried away certain United States Treasury notes, certain National Bank bills, and silver coin, of the aggregate value of $60, the personal property of one Julius Bueche. The affidavit further charged that the said Eugene Sovine was then “ in the custody of the sheriff of Allen-■, in the State of Indianа, and confined in the jail of said county, on the charge of grand larceny,” therein above set forth, and that, at no time since the said Eugene Sovine had been in custody on said charge, had the grand jury of Allen county aforesaid been in session, and that said grand jury was not then in session.
The information contained all the substantial аverments of the affidavit except that it charged the defendant Sovine with having “ unlawfully,” instead of “ feloniously,” stоlen, taken and carried away the money therein, as well as in the affidavit, described.
The defendant moved to quash both the affidavit and the information, urging as an objection to the affidavit that it did not aver that he was, аt the time it was made, in the custody •of the sheriff of Allen countyand as an objection to the information, that it did not аllege that- the money had been *578“feloniously” stolen, taken and carried away, within the mean-’ ing of the statutе defining the crime of grand larceny. Acts. 1877, Reg. Sess., p. 63. His motion was, however, overruled, both as to the affidavit аnd information.. A jury found the defendant guilty as charged, assessing a fine of $30 against him, and fixing his term of imprisonment at three yеars in the State’s prison. ’
The act of March 29th, 1879, providing -for the prosecution of felonies by affidavit and information, enacts that any one charged with a crime of that class may be so prosecuted:
“First. When any person is in custody on a charge of felony, and no grand jury is in session.” Acts 1879, p. 143.
We think the affidavit,1 taking all its parts tоgether, made it sufficiently apparent that the defendant was “ in custody on the particular charge оf felony preferred against him, at the time it was filed, and that hence the court did not err in refusing to quash the affidаvit. Independently of the defect relied upon by the defendant, the averment that he was “ confined in the jаil of said (Allen) county ” on that charge was quite sufficient. Davis v. State, 69 Ind. 130.
In referring to that part of the indictment which is devoted5 to the description of the offence intended to be charged, Chitty on Criminal Law says: “There are certain terms which “are-usually inserted in the part of the indictment we are now examining, which mark out the color of thе offence with precision, and which are absolutely necessary to determine the judgment. Thus every indictment for treason must contain the word ‘ traitorously’; every indictment for burglary, ‘ burglariously’ ; and ‘feloniously ’ must be introduced in every indictment for felony, and these words are so essential, that if the word feloniously be omitted in an indictment for stealing a horse, it will be only a trespass, or a misdemeanor of which the defendant may be convicted under such indictment.” 1 Chitty Crim. Law, 242.
If a misdemeanor be not included in the description of the felony charged, and the word “ feloniously ” be omitted, the *579indictment is insufficient for any purpose, and must be so held whenever the question of its sufficiency is properly presented. Moore Crim. Law, section 167, and authorities there cited; 1 Bishоp Crim. Procedure, section 534.
As to its material allegations, an information stands upon the same footing with аn indictment, and must be tested by the same rules of criminal pleading when a question is made upon,its sufficiency. Lindsey v. State, 72 Ind. 39.
An informаtion may be amended so as to make it conform to the affidavit upon which it is based, and in this way radical dеfects in the- information may be cured, where the offence is well charged in the affidavit; but where the sufficiency of the information is challenged it must be judged by what it contains, and not by what it might have been made to contain by some admissible amendment. Acts 1879, p. 144, sec. 3; R. S. 1881, sec. 1735.
Tested, therefore, by the statutory definition of the crime оf grand larceny, as well as by the well recognized rules of criminal pleading, the information in this case chаrged no indictable offence of any kind, and, for that reason, the motion to quash it ought to have been sustаined.
Counsel for the State argue that, as the defect in the information was one which might have been reаdily amended in the court below, Ave ought to regard the amendment as having been made, and to treat the information as having been sufficient upon demurrer.
There is a class of merely clerical mistakes, and of variances and discrepancies, usually developed at the trial of a cause, and not going to thе merits of the action, and concerning which courts are accustomed to permit amendments without аny serious question, which this court is in the habit‘of disregarding and treating as having been amended in the court below; but this liberаlity of construction does not extend tO’ cases like this, where the information, being materially defective, wаs held good upon a motion to quash, and where the trial *580afterwards proceeded without amendment. Buskirk’s Practice, 337; Keiser v. State, 78 Ind. 430; Dyer v. State, ante, p. 525.
The court erred in refusing to quash the information, notwithstanding the sufficiency of the affidavit. Davis v. State, supra.
The judgment is revеrsed, and the cause remanded for further proceedings.
The clerk will give the proper notice for the return of the appellant to the sheriff of Allen county.