124 Ind. 3 | Ind. | 1890
An affidavit and information were filed against the appellant charging him with the crime of perjury. He moved the court to quash the affidavit and information, which motion was overruled by the court, and he excepted ; thereupon he pleaded not guilty to the charge, and the issue joined was submitted to a jury for trial, who afterwards re-, turned a verdict that the appellant was guilty as charged, and that he be imprisoned in the State’s prison for the period of four years and pay a fine of $50. He filed a motion for a new ..trial, which was overruled by the court, and he excepted, and finally he moved in arrest of judgment, and said motion being overruled he reserved an exception, and thereupon the court gave judgment according to the verdict of the jury.
We have carefully examined the affidavit and information, and find no infirmity in either; the information follows the affidavit in its statement of facts.
The substance of the affidavit is, that, on the 19th day of February, 1890, at the county of Marion and State of Indiana, before Thomas L. Sullivan, mayor of the city of In
Three objections are taken to the affidavit:
1. The testimony upon which perjury is assigned was not material to the point in question.
2. The materiality of the false testimony is not sufficiently charged.
None of these objections are tenable.
The prosecution in the mayor’s court wherein the false testimony is alleged to have been given rested upon section 2079, R. S. 1881, and read's thus : “ Whoever keeps a building, room, arbor, garden, booth, shed, tenement or canal-boat, wharf-boat, or other water-craft, to be used or occupied for gaming; or who knowingly permits the same to be used or occupied for gaming, * * * shall be fined not more than five hundred dollars nor less than ten dollars.”
We cau not imagine more pertinent and material testimony for the State in prosecutions under the section quoted than that which relates to specific acts of gaming in the building or room named in the indictment or information, and evidence given by the accused to meet and overthrow testimony of that character introduced by the State is equally pertinent and material.
The averments in the affidavit are clearly within the provisions of section 1747 ; and that the testimony of the appellant upon which perjury is assigned was material and false abundantly appears. The court in which the false testimony is chárged to have been given is clearly and definitely stated. The affidavit discloses the facts that Thomas L. Sullivan was the mayor of the city of Indianapolis, and that while sitting as a court the prosecution on the trial of which the perjury charged is alleged to have been committed, was instituted and tried, and it is wholly immaterial by what name the court thus held is known; the facts stated show what court it was that Mayor Sullivan was holding. We do not think the court erred in overruling the motion for a new trial.
The street number by which the building was known was wholly immaterial to the sufficiency of the affidavit, which was the foundation of the prosecution before the mayor, and, therefore, the filling of the blank after the trial had commenced was of no importance one way or the other; the af
It is contended that the record of the proceedings in which the perjury is alleged to have been committed was not introduced in evidence; in this appellant’s counsel are mistaken. The bill of exceptions has this statement: “ This cause being called for trial, the jury being elected, tried, and sworn to try the same, the State of Indiana to maintain, and prove the material allegations of the affidavit, introduced the following evidence, to wit: ” and then follows what purports to be the evidence, including the said l’ecord. At the close of the bill of exceptions is the following: “ And this was all the evidence given in the cause.”
But the further point is made, that were the record in evidence it would appear therefrom that the offence alleged in the -affidavit in this case is not the offence for which the appellant was prosecuted before the mayoi’, and not only that, but that he was prosecuted before the mayor for no offence known to the law.
Taking the record as a whole, there is no variance between it and the affidavit, in this prosecution, as to the offence for which the appellant was prosecuted before the mayor. The affidavit which was the basis of that prosecution appears in the record, and discloses the character of the prosecution.
It is further contended that the affidavit in the present prosecution charges the affidavit before the mayor to have been made by one " James R. Shea,” but that the record of that proceeding, which was identified by the mayor, when testifying as a witness in this trial, discloses that the said affidavit was made by one “ R. Shea.”
The record entry made by the mayor does omit the given name, “ James,” but the affidavit, as it appears in the said record, discloses the name of “ James R. Shea,” subscribed thereto.
The point is made that the appellant is not identified as
We finally come to the motion in arrest of judgment. It is claimed that the court had no jurisdiction, for the reason that there is no record of the filing of the affidavit and information in open court, and nothing to show that the criminal court was in session when the affidavit and information were filed.
This is wholly unnecessary, for the very good reason that the statute does not require the affidavit and information to be filed in open court. There is such a provision with reference to indictments, and the reasons therefor are manifest when sections 1669,1670, 1671, 1672, are considered; but no such reasons exist with reference to prosecutions by information, and section 1672 recognizes the fact that it is only necessary to file the information with the clerk.
The word “session,” as employed in section 1679 of the statute, does not mean that the court must be actually open for the transaction of business; the statute does not say “ open session.”
The word is used as meaning the same thing as the word “ term,” when applied to the sitting of a court.
Worcester gives the following definition : “ The time or term during which a court, a legislative body, or other assembly, sit, with no other interval than short intermissions, or daily adjournments; the time between the first meeting of an assembly and its prorogation, or final adjournment; as, ‘ a session of Congress.’” Webster gives substantially the same definition.
Our conclusion is not in conflict with Hoover v. State, 110 Ind. 349. In that case the record disclosed the fact that the affidavit and information were filed in vacation; in the case before us the contrary appears. It appears not only that the
We do not think the court erred in overruling the motion in arrest of judgment.
Judgment affirmed, with costs.