NOTES TO CHAPTER 4.

CRIMINAL PROCEDURE.

ARTICLE 1-JURISDICTION.

1573. Division of offenses. Some of the provisions of this statute (sects. 1573– 1901) relate solely to proceedings, in criminal cases before justices of the peace; others apply to all courts, including those of justices; Sturgeon v. Gray, 96–170.

1580. In two or more counties. Where a person is seized and bound in one county, in pursuance of a conspiracy and purpose to kill him there formed and taken in to another county, where the murder is consummated, either county has jurisdiction to punish the crime. This section is constitutional; Archer v. State, 106-428. 1581. Property brought from another county. Under this section, where property taken in one county, by embezzlement, has been brought in to another county, the jurisdiction of the offense is in either county; Beaty v. State, 82-233.

ARTICLE 2-LIMITATION.

1594. Six months. In a prosecution for desecration of Sunday, under section 2000, proof must be made of a sale on some particular Sunday, within a time not barred; Gilbert v. State, 81-566.

2. A prosecution against a county treasurer, for embezzlement of public funds, should be commenced within two years after such officer has failed, at the expiration of his term, to pay over such funds to his successor. The allegation of demand and refusal subsequent to that time will not take an indictment out of the operation of the statute; State v. Mason, 108-53.

3. One who has forged a written instrument can not avail himself of the fact that a wrong date was prefixed thereto; the true date, showing that the statute of limitations has not run, may be alleged in the indictment; Garmire v. State, 104-446.

1597. Party absent or concealed. Indictment for larceny, charging the commission of the offense more than two years before the return of the indictment and that the defendant, by active means, which are specified, concealed the fact that the crime had been committed until within two years, is good. Aliter where the concealment is shown to have been not of the crime but of the defendant's guilt; State v. Hoke, 84-138; see Robinson v. £tate, 57-113; State v. Fries, 54-489; Jones v. State, 14-120; Free v. State, 13-324.

ARTICLE 4-SURETY OF THE PEACE.

1606. Affidavit. The circuit court has no original jurisdiction of proceedings for surety of the peace; State v. Cooper, 90-575.

2. This is not such a proceeding, for a criminal offense, as to be within the provisions of the statute giving defendants the benefit of every reasonable doubt, or a presumption of innocence; Arnold v. State, 92-189; Murray v. State, 26-141. The jury in such a case must take the law from the court; Arnold v. State, 92-189.

1609. Issue and trial. The only issue for trial, both in the court of the justice and, on appeal, in the circuit court is whether the complainant had just cause for the fears stated in his affidavit, when such affidavit was filed; Stone v. State, 97-346; not whether he has cause at the time of trial; State v. Steward, 48-146; State v. Sayer, 35-379. If that be found affirmatively, in the circuit court, surety must be required though such cause may have ceased; Stone v. State, 97-346.

2. The effect of this section, taken with sections 1606 and 1612, is to dispense with proof of the averment that the affidavit was not made from anger or malice and to confine the investigation to the question whether defendant had just cause to entertain the fears expressed in the affidavit. Wherefore, it is not admissible for defendant to give in evidence the record of a judgment of conviction in a prosecution

instituted against him, for attempting to provoke an assault, which in no respect contradicts or explains relator's testimony on the trial of an issue of finding surety to keep the peace. The relator's testimony may be impeached by evidence of contradictory statements or by showing malice or ill will; Stone v. State, 97-346; Johnson c. Wiley, 74-233; Scott v. State, 64-400. Acts of hostility may be shown, to impair the credit of relator as a witness. Perhaps it would be proper to show that the wit. ness caused a prosecution to be instituted against defendant; Stone v. State, 97-347. 1610. Recognizance. A proceeding, before a justice, to obtain surety of the peace, in requiring defendant to enter into recognizance, in conformity with the statute, or, in default of such recognizance, in committing him to the county jail is in no proper, or legal, sense a final judgment, within the meaning of section 1119, which forbids an inquiry into the legality of the judgment or process whereby a defendant is in custody, or his discharge therefrom, under a writ of habeas corpus; Smelzer v. Lockhart, 97-320.

2. A justice is not authorized to render judgment of any kind - not even for costs. His order to enter into recognizance etc. can not be regarded as a final judgment; hence, it is error to hold that the record of a justice is conclusive and can not be attacked collaterally nor contradicted by parol; Smelzer v. Lockhart, 97–320.

ARTICLE 6-TRIALS BEFORE JUSTICES.

1626. Affidavit. It is not error for a justice to permit a copy of a lost affidavit to be substituted for the original, on a proper showing of the loss; Miller v. State, 72421; Small v. State, 106-95.

2. On appeal to the circuit court, where it appears, to the satisfaction of the court, that the affidavit is lost, a substituted affidavit may be filed and it will be presumed, in the absence of a showing, that such substituted paper is a correct copy of the original; Small v. State, 106-95.

1627. Warrant. A warrant to justify an arrest by a special constable must be addressed to him by name (Dietrichs v. Schaw, 43-175; Benninghoof v. Finney, 22101). Unless so addressed an arrest by him, by virtue thereof, confers no jurisdiction upon the examining magistrate; State v. Wenzel, 77-431.

2. A justice can not acquire jurisdiction, of one accused of crime, upon an illegal arrest made under color of a void warrant; State v. Wenzel, 77-431.

1628 Proceedings after arrest. In a prosecution before a justice a mere failure to arraign the accused is not available error; Johns v. State, 104–558.

1630. Continuance - Recognizance. A recognizance taken in a case where the conrt has no jurisdiction can not be enforced; State v. Wenzel, 77-433.

1631. Proceedings after forfeiture. This section, and sections 1704 and 1721 are applicable to justices; Fowler v. State, 91-510.

2. Complaint on a forfeited recognizance, conditioned that accused will appear before a justice, to answer to a charge of cruelty to animals, on a future day to which the trial was continued, averring jurisdiction in the justice of the offense and person of accused and that on the day fixed the justice entered judgment of forfeiture, sufficiently shows the justice's jurisdiction and the forfeiture and is not vulnerable on demurrer; Friedline v. State, 93–368. An averment of the entry of judgment of forfeiture by the justice implies that the proper steps, authorizing such forfeiture, were taken; Friedline v. State, 93-368.

3. The record of the justice, as against collateral attack, imports absolute verity, and can not be disputed by plea or proof, in a suit on a recognizance; Friedline v. State, 93-370; Argo v. Barthaud, 80-63; Wilkinson v. Moore, 79-397; Featherstone v. Small, 77-143; Stoddard v. Johnson, 75–20.

4. It is no defense, in an action on a forfeited recognizance, that the criminal charge, in the case in which it was taken, is not sufficient; Friedline v. State, 93-370; Adams . State, 48-212; Gachenheimer v. State, 30–63.

1632. Changes of venue Prosecution to obtain surety of the peace. When an affidavit, for change of venue, is made by defendant that he can not have an impartial trial before a justice, on account of his interest, bias or prejudice, at any time before trial commenced, the justice has no discretion; it becomes his imperative duty to grant such change and all proceedings of the justice after the tender of the affi davit and demand for the change are coram non judice and void; Smelzer v. Lockhart, 97-321.

2. Under this section and sections 1450 and 1470 the justice to whom a case is sent

on change of venue, is not required to issue a summons to bring the defendant into court; L'sville etc. Ry. Co. v. Hagen, 87-32.

1635. Trial of misdemeanor. The strict rules governing trials for felonies in courts of superior jurisdiction are not applicable to trials before justices of the peace for misdemeanors; hence, the discharge of a jury after three hours' deliberation, it being then late in the night, defendant not objecting but demanding another trial, will be presumed to have been regular and will not bar another prosecution; Fowler v. State, 85-540.

1637. Jurisdiction. A justice has jurisdiction to try and determine all cases of misdemeanor, where the punishment may be by fine only; Jenkins v. State, 78–135. That is where a fine is the only punishment that must be inflicted, though imprisonment in the county jail might, but need not, necessarily, be imposed; State v. Creek, 78-140.

2. A justice has no jurisdiction either to acquit or convict one who is charged with a felony. His only authority in such a case is that of an examining court, to hear and discharge or commit and bind the defendant over to appear before a court having jurisdiction to try the case; Siebert v. State, 95-480; State v. Hattabough, 66-223; State v. Morgan, 62–35; Hawkins v. State, 24-288.

1638. Assault, battery and affray. A justice has jurisdiction to try simple assaults and batteries; State v. Hattabough, 66-223; and his judgment therein will not be void, although an insufficient affidavit was filed and he failed to have the injured party present or did not subpoena him; State v. George, 53-434.

2. Where conviction has been fraudulently procured it will be no bar; Watkins v. State, 68-427; in the absence of the injured person, is no bar to a real prosecution for the same offense. Such a judgment is a mere nullity; Halloran v. State, 80-587. 1640. Crimes not punishable by city or town. This section, forbidding cities and towns from punishing, by ordinance, any act which is a public offense by statute, is constitutional. The object is to prevent persons being twice punished for the same offense; Jett v. City Richmond, 78-317.

2. This section does not prohibit the recovery of a penalty for the violation of a town ordinance on the subject of selling intoxicating liquors without a town license; Clevinger v. Town Rushville, 90-259.

3. So, also, under a city ordinance; Zeller v. City Crawfordsville, 90-263.

1643. Appeal. Where in apt time one takes proper steps, as required by statute, to appeal from a justice's judgment against him in a criminal case, if the justice shall fail to send up to the appellate court, the transcript etc. until after the time limited he may be compelled by mandate; State v. Cressinger, 88-501.

2. An appeal before judgment entered is a nullity; Sturgeon v. Gray, 96-173.

3. The effect of the appeal is more than a mere stay of proceedings before the justice. It does more; it transfers the whole proceeding to the court to which the appeal is taken, to be disposed of, there, de novo. The circuit court acquires complete jurisdiction of the case and, without its consent, defendant can not dismiss his appeal; Wisehart v. State, 104-407.

4. In criminal cases, before a justice or mayor, defendant's appeal bond, although filed in time, will not constitute an appeal where, at the time of filing such bond, defendant instructs the justice or mayor to delay the filing of the transcript in the cir. cuit court until further orders. In such case the appeal will not be taken until the further orders are given; Baumbauer v. State, 76-354.

1644. Form of recognizance. One who is under recognizance, in the form hereby prescribed, to appear before a justice to answer a criminal charge and who, on obtaining a change of venue, fails upon order of the justice to enter into a new recog nizance for his appearance before the justice to whom the venue is changed forfeits his recognizance; Fowler v. State, 91-509.

1645. Recognizance and transcript. A mere clerical error, in copying the affidavit in to the transcript, shown to be such by the original papers, sent up as required by statute, is not avaliable to defendant on appeal, to the circuit court, from a conviction before a justice; Hunter v. State, 102-430.

2. The failure of a justice to perform his duty, in sending up a transcript etc. within the time fixed by a statute, when an appeal is properly taken from his judgment, does not deprive a party of his appeal; State v. Cressinger, 88-501.

1646. Judgment. Section 1489 applies, only, to civil actions; Sturgeon ↑ Gray, 96-171; Fowler v. State, 91-511; Wright v. Fansler, 90-493; there is no statute fix. ing the time in which, after finding or verdict, the judgment shall be rendered by a

justice, in a criminal case; Sturgeon v. Gray, 96–171. It may be entered, in favor of the defendant, at any time after it is rendered. So, a judgment was held valid which was not entered by the justice for nearly two years after the preliminary examination and discharge of one who was charged with larceny; Wright v. Fansler, 90-492.

2. For the purpose of rendering judgment, the personal attendance of the accused, before the justice, is necessary, in a case a part of the punishment whereof, may be imprisonment in the county jail (sect. 1760) and, it seems, in all cases other than those punishable by fine only (sect. 1851). To secure his presence the justice is under duty to issue a warrant for his arrest (sect. 1853), that he may be brought in to receive judgment. But, a delay in doing this, upon the voluntary absence of defendant will not vitiate the judgment. The justice may receive the verdict; Sturgeon v. Gray, 96-172.

3. Criminal prosecution against two or more. The judgments should be several as against those found guilty, and not joint. If one be absent on the return of the verdict the rendition of judgment against one does not prevent judgment against the other when he is brought in. From that judgment he may appeal within ten days from the entry thereof; Sturgeon v. Gray, 96–172.

ARTICLE 7-THE GRAND JURY.

1648. Number of jurors. The names of eighteen men must be drawn from the box to be summoned as grand jurors (sect. 1386). The jury, when convened, may consist of any smaller number, not less than twelve; Hudson v. State, 1 B., 317 (number changed by Stat., Mar. 13, 1875).

1656. Challenge. Where a defendant moves to quash the venire issued for a jury and, also, challenges the array, but the record does not show, in either instance, the causes for the motion and challenge, or that defendant's rights were prejudiced by the rulings thereon, such rulings are not available, for error, on appeal; Norton v. State, 106-167.

1657. Challenge, how tried. A challenge to the array of a grand jury must be supported by affidavit, setting forth the cause therefor. A plea in abatement, seeking to attack the manner in which a grand jury was organized, must show not only that the question presented by it was not raised by challenge to the array, but, also, that the defendant had no suitable opportunity of challenging the array; M'Clary r. State, 75-263.

ARTICLE 8-INDICTMENT AND INFORMATION.

1669. Indictment and how found. Where it appears, from the record, that an indictment was, on a certain day, returned in to open court, by the grand jury, indorsed "a true bill", by the foreman, the return is sufficiently shown; Epps c. State, 102-543.

2. An indictment must be indorsed "a true bill ", and the indorsement must be signed by the foreman of the grand jury. Unless so indorsed a motion to quash the indictment will be sustained; Strange v. State, 110-355; Cooper v. State, 79-207; Johnson v. State, 23-32; see Heacock v. State, 42-393. Where the indictment copied in to the record, on appeal, shows the want of such indorsement it is regarded as a defect apparent on the face of the indictment; Cooper v. State, 79-207.

3. It is error to quash an indictment merely because the name of the foreman is indorsed in the wrong place; ex. gr., preceding the words “a true bill", instead of on a line with the word foreman"; State v. Bowman, 103-70.

4. It is immaterial whether the words "a true bill ", indorsed upon the indictment, appear, in the record, as written across it or be copied in to the transcript immediately after the indictment; Greene v. State, 79-540.

5. Section 1759 does not recognize the failure of the foreman of the grand jury to indorse "a true bill" on an indictment as a cause for quashing it; wherefore, such an objection can not now be made available on motion to quash; Reeves v. State, 84-117.

1670. Court compels signatures and indorsements. An indictment should be quashed or a motion in arrest sustained, if the indictment is not returned in to open court. Upon appeal the record must affirmatively show that it was so returned; State v. Drake, 97-125.

2. Where it appears from the record that an indictment was, on a certain day, re. turned in to open court, by the grand jury, indorsed, "a true bill", by the foreman,

the return is sufficiently shown and, in that respect it is sufficient, on a motion to quash; Epps v. State, 102-543.

3. Where the record states, "come now the grand jury" etc. " and present in open court a particular indictment, it sufficiently appears that the indictment was returned as required by law; Reeves v. State, 84-117.

4. A recital in the record that the grand jury come in to open court and present an indictment, followed by an indictment, is sufficient to show its due return; Heath v. State, 101-513.

5. The record showing that the grand jury returned in to open court seven indict ments, each signed by the prosecuting attorney and properly indorsed by the foreman and numbered 1746, 1743 etc. and that they were duly examined and filed and indictment 1743 is set out, with all its indorsements, sufficiently shows its return; Padgett v. State, 103-553.

6. By the use of the word " prosecute", in section 5865, the duties of the special prosecuting attorney, are not confined to the prosecution of cases under indictments already found. In the absence of the regular prosecuting attorney he may perform any duty of the office, including the signing of indictments; Choen v. State, 85-210.

7. A court takes cognizance of its own officers and of their official signatures and designations; Choen v. State, 85-210; Mountjoy v. State, 78-172; Hipes v. State, 73– 39. The trial court, therefore, in passing on a motion to quash determines for itself whether the signature to an indictment is that of its proper officer and the supreme court must presume that it determined properly; Choen v. State, 85-210.

8. The manner in which an indictment is signed, by the prosecuting attorney, is not presented by a motion to quash, or in arrest, and need not be considered or decided; Knight v. State, 84-741.

9. Where the statements of the indictment and the record entries show that an indictment was returned in to open court, errors or irregularities in the selection or empanelling of the grand jury are properly taken advantage of by plea in abatement; Henning v. State, 106-388.

10. The settled practice forbids the correction of the record of a case after such case has been decided; State v. Dixon, 97-126; see Warner z. Campbell, 39-409; Pittsburgh etc. R. R. Co. v. Van Houten, 48-90; State v. T. H. etc. R. R. Co., 64–297.

1671. Witnesses' names. Clause 5 of section 1679, construed in connection with this section and section 1756, does not imperatively require the names of the witnesses to be stated in the body of the affidavit on which an information is based. It is error to quash it for such omission; State v. Bunnell, 81-216.

1673. Nolle prosequi. This section changes the usual rule of the states, in requiring leave of the court to be obtained prior to the entry, by the prosecuting attorney of nol. pros. Where jeopardy has been actually incurred there can be no dismissal at all; a nol. pros. in such a case is, in effect, an acquittal of the accused; Halloran v. State, 80-589; see Watkins v. State, 68-427; Joy v. State, 14–139.

1677. Lost information. An information and affidavit lost and not on file, wherefore not copied in to the transcript and no excuse for the seeming failure of defendant to institute proceedings, in the trial court, to supply the missing papers, with a view to having copies certified up, on appeal. The presumption runs in favor of the regularity of the proceedings. It is the duty of appellant to bring up a perfect record and when it appears that a complaint was filed but none is found in the record, no question is presented on the complaint and, ordinarily, none upon any of the proceedings in the trial court. That the clerk certifies "no complaint appears on file" affords no cause for reversal; Shoffner v. State, 93-522; Bonsell v. Bonsell, 41-476; the doctrine of which case and that of Collins v. U. S. Expr. Co., 27-4 is held to apply to criminal cases; Shoffner v. State, 93-522; Kennedy v. State, 66-370; Collins v. U. S. Expr. Co., 27-11.

1678. The information. An information which avers the malicious publication, in a newspaper, as follows, "the rascally conduct of P B, mayor of the city of H. and his pimps, in arresting and fining men on the most frivolous pretexts would not be tolerated in any other town in northern Indiana. There will be some lynch law put in force some of these days", and that the publication is false, shows a criminal libel under this section; State v. De Long, 88-315.

2. An information being filed by the prosecuting attorney, upon affidavit, on the quashal of an indictment charging the same offense, no question as to the ruling in