32 Ind. App. 161 | Ind. Ct. App. | 1904
Appellant was convicted in tlie court below of selling intoxicating liquor without a license.
The errors assigned are: (1) The action of the court in sustaining the demurrer of the appellee to the plea in-abatement of appellant; (2) in overruling appellant’s motion to quash the affidavit and information; (3) in grant'ing leave to the prosecuting attorney to sign his name to the information pending the consideration of the plea in abatement, and before pleading to the charge heroin; (4) in overruling appellant’s motion for a new trial. We shall consider only the specification discussed by appellant’s counsel.
The plea in abatement alleges that the prosecuting attorney caused a subpoena to issue for the prosecuting witness
In the case before us the witness appeared in obedience to the subpoena, and made the affidavit in question. Had he refused to appear, or, haying appeared, refused to answer questions or make the affidavit, he would not have been in contempt of court under the foregoing decision. Subdivision five of §1748 Burns 1901 is pertinent to the question. “Whenever, either in term or vacation, any competent and reputable person has knowledge of the commission of any misdemeanor not within the exclusive jurisdiction of, a justice of the peace, ho may make an affidavit before any person authorized to administer oaths, setting forth the offense and the person charged in plain and concise language together with the names of the witnesses, and file the same with the clerk, who shall thereupon notify the prosecuting attorney thereof. The prosecuting attorney shall at once prepare and file an information, in term or vacation, in every case against the person charged in said affidavit.” The record discloses that the prosecuting witness, having knowledge of the commission of a misdemeanor not within the exclusive jurisdiction of a justice of the peace, made the affidavit before a person authorized to administer oaths. The fact that the witness did not voluntarily appear before the justice would not destroy the validity of the affidavit upon which the information was founded; nor would an irregularity upon the part of the prosecuting attorney — one which did not prejudice the rights of the defendant — deprive the trial court of jurisdiction. It is manifest that §7811, supra, was intended only to assist the district prosecutor in his efforts to discover violations of the law, for no grand jury was provided for the common pleas court, but the common pleas prosecutor was not limited to affidavits procured in the way prescribed.
It is alleged that the prosecuting attorney took the affi
In support of one of the reasons for a new trial it is claimed that the evidence is not sufficient to support the verdict, for the reason that it does not show when the sale of liquor charged took place. The prosecuting witness testified that he was in defendant’s place of business along in June and April of this year — 1903; that he went into the defendant’s place of business and got a drink (asked for hop ale) ; was waited upon by appellant; got what he called for, and drank it; paid for it; and that it was intoxicating. This fixes the time with sufficient definiteness.
The court permitted one Virgil Stark, a witness for the State, to testify that he had bought and drank hop ale at other places than at defendant’s; that it was intoxicating. He testified that he did not see prosecuting witness drink, and did not know what he drank. It is claimed that this was error. It was competent for the purpose of showing that hop ale was intoxicating liquor.
This opinion is not in conflict with the authorities cited by appellant’s counsel in support of the propositions that the criminal procedure of the State is statutory, and that the method prescribed must be strictly followed. Under §1148, supra, an information must be based upon an affidavit by a reputable person before an officer authorized to administer o^iths. That the prosecuting witness could
We find no error for which the judgment should be reversed. Judgment affirmed.
Wiley, P. J., concurs in the conclusion.