166 Ind. 585 | Ind. | 1906
—Appellee was charged by affidavit and information with assault and battery with intent to mnrder. He filed a plea in abatement to the charge, and the State’s demurrer thereto, for want of facts to avoid and abate the action, was overruled. An exception to the ruling was reserved as a point of law for the decision of this court; and, the State declining to plead further, appellee was discharged.
The answer in abatement, omitting the caption, is as follows: “Comes now George Roberts, the defendant in the above-entitled cause, and, for answer by way of abatement to the affidavit and information in the above-entitled cause, says the offense referred to in said affidavit and information, if any was committed, was committed on November 22, 1904, at the county of Fayette, in the State of Indiana; that on November 22, 1904, John L. Hubbell filed an affidavit before Finley II. Gray, the mayor of the city of Connersville, in said county, charging this defendant with the identical offense which is set forth in the affidavit and information in this cause, and that said mayor, upon the filing of said affidavit before him, issued a warrant for the arrest of this defendant upon said charge, and that he was arrested under said warrant and brought before said mayor on said charge; that said mayor recognized this defendant to appear at the first day of the then next term of the Fayette Circuit Court, to answer to said charge, and that this defendant gave bond in the sum of $1,000, to secure his appearance at the then next term of said court; that the then next term of the Fayette Circuit Court convened in said county of Fayette, in the State of Indiana,
That part of the statute of criminal procedure applicable to the facts of this case reads as follows: “All public offenses, except treason and murder, may be prosecuted in the circuit and criminal courts by information based upon affidavit in the following cases: * * * Fourth. Whenever a public offense has been committed, and the party charged with the offense is not already under indictment therefor, and the court is in session, and the grand jury has been discharged for the term.” §1748 Burns 1901, §1679 R. S. 1881. The conflict in our decisions upon the proper construction of this statute suggests the propriety of a brief reference to the history of legislation upon this subject. Section 12, article 1, of the Constitution of 1816 provided: “That no person * * * shall * * * be put to answer any criminal charge, hut by presentment, indictment or impeachment.” The statutes enacted during the continuance of that constiutional provision required a
The judgment is reversed, with directions to sustain the demurrer to appellee’s answer in abatement, and for further proceedings.