State v. Clevinger

14 Ind. 366 | Ind. | 1860

Per Curiam.

An affidavit was filed before a justice of the peace, charging Clevinger with having “maliciously injured a toll-gate, the property of the Walnut-street Turnpike Company, of the value of five dollars, by then and there taking the same down off the hinges, to the damage of said turnpike company,” &c.

Before the justice, the defendant was fined; and-in the Court of Common Pleas, a motion was made by defendant, and sustained, to dismiss the case because of the insufficiency of the affidavit.

G. M. Anthony and W March, for the state. D. Nation and W Brotherton, for the appellee.

It is insisted that the affidavit does not sufficiently aver the specific injury done; and we are referred to Aydelott v. The State, 7 Blackf. 157, and Jackson v. The State, 7 Ind. R. 270. The authorities cited do not appear to us to sustain the position assumed by the appellee. Here the injury is stated, namely, removing the gate from its hinges. The amount of the injury thereby caused was another question—one of fact—to be determined upon the evidence and circumstances attending the act.

The judgment is reversed with costs. Cause remanded, &c.