If an indictment or information is lost after judgment, proceedings should be taken to have it supplied before an appeal. Shoffner v. State, 93 Ind. 519. 1744. (1675.) Inspection forbidden.-102. Indictments and informations against persons not in custody or who have not given bail, and the records of such indictments are in the custody of the clerk, and can not be inspected by any person, except the court, the clerk, and his deputy, and the prosecuting attorney, until after the arrest of the defendant. 1745. (1676.) Disclosure, a contempt.-103. No grand juror, prosecuting attorney, clerk, judge, or other officer can disclose the fact that an indictment is found until the defendant has been arrested, except any disclosure that may be necessarily incident to the issue and service of a warrant to arrest the defendant. A violation of this and the next preceding section is punishable as a contempt. 1746. (1677.) Lost information.-104. In case of the loss, theft, or destruction of an information, the prosecuting attorney may file in court another information; and the prosecution shall proceed and trial be had without any delay from that cause. If an information is lost after judgment, proceedings should be taken to have it supplied before an appeal. Shoffner v. State, 93 Ind. 519. 1747. (1678.) The information.-105. An information is the official statement made to the court by the prosecuting attorney, that a person has been guilty of some designated felony or misdemeanor. It must be filed and signed by the prosecuting attorney, and based upon the affidavit of some competent and reputable person. See section 1802. The affidavit and information may both be filed at the same time. State v. De Long, 88 Ind. 312. The affidavit and information must correspond as to the description of the offense. Dyer v. State, 85 Ind. 525. Using the word "affiant" in the information instead of the words "prosecuting attorney," will not be material when it appears to be a mistake. Trout v. State, 107 Ind. 578. That the name signed to the affidavit is not the true name of the affiant is no cause for abating the action. State v. Cooper, 96 Ind. 331. The affidavit must contain a good charge; it can not be aided by the information. State v. Gartrell, 14 Ind. 280; State v. Beebee, 83 Ind. 171; Brunson v. State, 97 Ind. 95; Engle v. State, 97 Ind. 122. The affidavit and information must correspond as to the date the offense was committed. Dyer v. State, 85 Ind. 525. 1748. (1679.) Prosecution by information.-106. 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: First. Whenever any person is in custody, or on bail, on a charge of felony or misdemeanor, except treason and murder, and the court is in session, and the grand jury is not in session or has been discharged. Second. Whenever an indictment, presented by any grand jury, has been quashed, and the grand jury for the term when such indictment is quashed is not in session or has been discharged. Third. When a cause has been appealed to the supreme court, and reversed on account of any defect in the indictment. 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. Fifth. 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, he 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. See section 1802. The prosecution of felonies by information is not repugnant to the constitution of the United States. State v. Boswell, 104 Ind. 541. Since the adoption of the criminal code of 1881, it has not been necessary to set forth in an information for a felony why the action is so prosecuted. Hodge v. State, 85 Ind. 561; Powers v. State, 87 Ind. 97; Elder v. State, 96 Ind. 162; Nichols v. State, 127 Ind. 406. If an indictment is not returned against the defendant at the term he is recognized to appear, he can not afterwards be prosecuted for a felony by information. State v. Boswell, 104 Ind. 541. Persons arrested on charges of felony in vacation may be prosecuted by information if there is no session of the grand jury between the arrest and filing of the information. Kennegar v. State, 120 Ind. 176. If it appears that a felony has been committed, that the defendant is not under indictment, that the court was in session when the information was filed, and that the grand jury has been discharged for the term, the prosecution will be proper. State v. Drake, 125 Ind. 367. When an indictment for felony is abated and the defendant is the grand jury is not in session, an information may be filed. Ind. 517. held in custody, and Rowland v. State, 126 If an information is filed charging a felony at a time when the grand jury is not in session, the subsequent meeting of the grand jury at the same term will not affect the jurisdiction of the court. Elder v. State, 96 Ind. 162. Affidavits and informations charging felonies can not be filed in vacation. Hoover r. State, 110 Ind. 349. Informations and affidavits need not be filed in open court, they may be filed with the clerk in term time. Stefani v. State, 124 Ind. 3. Affidavits and informations may both be filed at the same time. State v. De Long, 88 Ind. 312. The names of the witnesses need not be set forth in the affidavit. State v. Bunnell, 81 Ind. 315. There must be an information filed when the action is commenced in the circuit court. State v. First, 82 Ind. 81. The omission of the name of the affiant from the body of the affidavit is immaterial when his name is signed to the affidavit. Beller v. State, 90 Ind. 448. The affidavit may be made upon information and belief. Toops v. State, 92 Ind. 13; Franklin v. State, 85 Ind. 99. When the affidavit is made before a notary public his seal must be attached, and attaching the seal after a motion to quash is ineffectual. Miller v. State, 122 Ind. 355. An affidavit and information for a misdemeanor need not show any reason why the prosecution is not by indictment. State v. Frain, 82 Ind. 532. [1881 S., p. 114. In force September 19, 1881.] 1749. (1680.) Arrest defined.-107. Arrest is the taking of a person into custody, that he may be held to answer for a public offense. See section 1771. The retaking of an offender after an arrest and an escape constitute but one arrest. Cooper v. Adams, 2 Blkf. 294. An arrest may be made and bail taken on Sunday. State v. Douglass, 69 Ind. 544. 1750. (1681.) Warrant.-108. When an indictment is found, the court may direct the clerk to issue a warrant returnable forthwith. If no order is made, the clerk shall issue a warrant upon all indictments, within ten days after the close of the term. Warrants must be issued upon informations as soon as they are filed. When a warrant issues to the sheriff of the county, where the indictment was presented or in formation filed, he may pursue and arrest the accused in any county, and commit him to jail or hold him to bail, as provided in this act. When a warrant issues to the sheriff of another county, he shall at once arrest the accused, if he can be found, and convey him to the county from which such warrant issued, or hold him to bail as provided in this act. Process legal upon its face justifies the arrest of the persons named therein. Jeffries v. McNamara, 49 Ind. 142; Hays v. Ford, 55 Ind. 52. A warrant will be presumed to be legal until shown to be otherwise. Kernan v. State, 11 Ind. 471. If a warrant is issued under an unconstitutional law an arrest can not be justified under such warrant. Sumner v. Beeler, 50 Ind. 341. The arrest of persons not named in the warrant is illegal, but if they appear without objection the error is waived. Ard v. State, 114 Ind. 542. 1751. (1682.) To different counties.-109. The warrant issues to the sheriff of the county where the indictment or information is filed, unless the prosecuting attorney directs the warrant to be issued to some other county. Warrants may issue to different counties at the same time. The sheriff must execute the warrant and serve the subpœna immediately upon their delivery to him. 1752. (1683.) Form of warrant.-110. The warrant of arrest is an order in writing, issued in the name of the state of Indiana, signed by the clerk and attested by the seal of the court, commanding the arrest of the defendant. If issued during term time, and returnable forthwith, it may be, substantially, in the following form: The state of Indiana, to the sheriff of Floyd county, greeting: You are commanded to arrest Oliver Bohannan, if he may be found in your county, so that you have him before the judge of the Floyd circuit court, instanter, then and there to answer the state of Indiana on a charge of robbery, and abide the order of the court thereupon; and return this writ. Witness the clerk and seal of said court, this [SEAL.] day of A. D. 18-. And if other than a bench warrant, it may be substantially in the following form: The state of Indiana, to the sheriff of Floyd county, greeting: You are hereby commanded to arrest Cadwell Emmons, forthwith, and hold him to bail in the sum of — dollars, to answer, on the first day of the next term of the Floyd circuit court, to be holden at the court-house in New Albany, on the Monday in 18-, to an indictment [or information] filed in said court, for robbery, and for want of bail commit him to the jail of the county until legally discharged. Witness the clerk and seal of said court, this day of [SEAL.] A. D. 18—. 1753. (1684.) Fixing bail.-111. The court, on the first day of each term, must order the amount in which persons charged by an indictment or information are to be held to bail; and the clerk must enter such order on the order-book, and he must indorse the amount on each warrant when issued. The order may apply to informations to be filed in vacation. If no order fixing the amount of bail have been made, the sheriff may present the warrant to the judge of the circuit or criminal court, and such judge must thereupon indorse the amount of bail to be required; or, if there be no such judge in the county, the clerk may fix the amount of bail. If the amount of bail is not indorsed on the warrant the recognizance taken is not thereby rendered void. Trimble v. State, 3 Ind. 151; Votaw v. State, 12 Ind. 497. The court may, by a general order, direct the amount of bail required in each class of offenses. Carmody v. State, 105 Ind. 546. The fixing of the amount of bail is a judicial act, and the latter clause of this section authorizing the clerk to fix the amount of bail in certain cases is unconstitutional. Gregory v. State, 94 Ind. 384. When bail is taken by the court in open session, no other order fixing the amount is necessary. McClure v. State, 29 Ind. 359; Grinestaff v. State, 53 Ind. 238. If an action is pending in one county, and the prisoner is confined in jail on such charge in another county, the court in the latter county may fix the amount of bail. Hunter v. State, 21 Ind. 351. 1754. (1685.) Summons against corporation.-112. When an indictment is returned or an information filed against a corporation, a writ of summons, commanding the sheriff to notify the accused thereof, and returnable on the tenth day after its date, shall issue on the precipe of the prosecuting attorney. Such summons, together with a copy of the indictment or information, shall be served and returned in the manner provided for the service of summons upon such corporations in civil actions. The corporation, on or before the return-day of a summons duly served, may appear by one of its officers, or by counsel, and answer to the indictment or information by motion or plea; and upon its failure to make such appearance and answer, the clerk shall enter a plea of "not guilty "; and upon such appearance being made or plea entered, the corporation shall be deemed, thenceforth, continuously present in court until the case is finally disposed of. See section 1970. As to the liability of corporations to criminal prosecutions, see State v. President, etc., 23 Ind. 362; State v. Railway Co., 115 Ind. 466; State v. Railroad Co., 120 Ind. 298. 1755. (1686.) Bailable offenses.-113. All offenses other than murder or treason shall be bailable by sufficient sureties. Murder or treason shall not be bailable when the proof is evident or the presumption strong. See sections 61 and 62, being sections 16 and 17 of article 1 of the constitution. As to when persons charged with murder are entitled to bail, see Ex parte Heffren, 27 Ind. 87; Ex parte Colter, 35 Ind. 109; Ex parte Jones, 55 Ind. 176; Ex parte Kendall, 100 Ind. 599. This section is applicable to charges for contempt. Baldwin v. State, 126 Ind. 24. 1756. (1687.) Arrest, how made.-114. An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer; but the person arrested shall not be subject to any more restraint than is necessary for his arrest and de tention. |