!

must be entered in the minutes of the Court, and the subsequent proceedings on the indictment or information may be had against him by that name, referring also to the name by which he is accused.

1744. Separate counts. 170. The felony or misdemeanor may be charged in separate counts of the indictment or information to have been committed by different means.

1. Where there are several counts, it is in the discretion of the Court to compel the State to elect on which count she will proceed; and error can not be assigned upon the ruling. Mershon v. State, 51 Ind. 14; Miller v. State, id. 405...

1745. Joinder of counts.

171. Counts for murder in the first and second degree and for manslaughter may be joined in the same indictment or information; and, on the trial, the defendant may be convicted of either offense.

1746. Murder in second degree and manslaughter. 172. In an indictment or information for murder in the second degree or for manslaughter, it shall not be necessary to set forth the manner in which or the means by which the death was caused; but it shall be sufficient in an indictment or information for murder in the second degree, to charge that the defendant did purposely and maliciously, but without premeditation; and in an indictment or information for manslaughter, that the defendant did unlawfully kill the deceased.

1747. Perjury or subornation. 173. In an indictment or information for perjury or subornation of perjury, it shall only be necessary to set forth the substance of the controversy or the matter in respect to which the crime was committed, and in what Court or before whom the oath alleged to be false was taken, and that the Court or person before whom it was taken had authority to administer it, with the proper averments to falsify the matter whereof the perjury may be assigned, without setting forth any part of any record or proceeding or the commission or authority of the Court or other authority before which the perjury was committed. And in indictments for perjury in swearing to any written. instrument, it shall only be necessary to set forth that part of the instrument alleged to have been falsely sworn to and to negative the same, with the name of the officer or Court before whom the instrument was sworn to. 1748. Larceny — Joinder of counts. 174. An indictment or information for larceny may contain a count for obtaining the same goods by burglary, for obtaining the same goods by robbery, and for obtaining the same property by false pretense, a count for embezzlement thereof, and a count for receiving or concealing the same property knowing it to have been stolen, or any of such counts; and the accused may be convicted of either offense, and the Court or jury trying the cause may find all or any of the persons accused guilty of either of the offenses charged.

1. On an indictment charging larceny and embezzlement in separate counts, upon a general plea of guilty, the Court assessed the lowest penalty allowed for embezzlement, being less than the minimum for larceny; Held, not available error.— - Griffith v. State, 36 Ind. 406. See, also, Taylor v. State, 49 Ind. 555.

1749. Averments as to elections. 175. When an offense is com. mitted in relation to any election, an indictment or information as to such offense shall be deemed sufficient if it allege that such election was authorized by law, without stating the names of the officers holding the clection or the persons voted for or the offices to be filled at such election.

1750. Averment as to money, etc. 176. In every indictment or information for the offenses referred to in this Act, in which it is necessary to make an averment as to any money, or bank bills, or notes, United States treasury notes, postal and fractional currency or other bills, or notes issued by any lawful authority and intended to pass and circulate as money, it shall be sufficient to describe such money, bills, notes, or currency simply as money, without specifying any particular coin, note, bill, or currency; and such allegation shall be sustained by proof of any amount of coin or of any such note, bill, or currency, although the particular species of coin of which such amount was composed or the particular nature of such note, bill, or currency be not proved.

1751. Written instrument. 177. In all other cases except forgery, when it is necessary to make an averment in an indictment or information as to any instrument, whether the same consists wholly or in part of writing, printing, or figures, it shall be sufficient to describe such instrument by any name or designation by which the same is usually known, or by the purport thereof.

1752. Misdescription of forged instrument. 178. When an instrument which is the subject of an indictment or information for forgery or for uttering any forged instrument has been destroyed or withheld by the act or procurement of the defendant, and the fact of the destruction or withholding is alleged in the indictment or information and established on the trial, the misdescription of the instrument is immaterial.'

1753. Names of partners, joint owners, etc. 179. When any offense is committed upon or in relation to any property belonging to partners or to several joint owners, or which, when the offense was committed was in possession of a bailee or tenant, the indictment or information for such offense shall be deemed sufficient, if it allege the ownership of such property to be in such partnership by its firm name, or in any one of such partners, owners, bailors or bailees, tenant or tenants, without naming all of them; and in an indictment or information for stealing, destroying or mutilating a will, codicil, or other testamentary instrument, it shall not be necessary to allege that the will, codicil, or other instrument is the property of any person or of any value.

[1879 S., p. 146. In force March 29, 1879.]

1754. Foreign express companies. 4. In all criminal cases or prosecutions affecting the rights or property of such copartnerships, associations of persons, joint-stock associations, or companies [foreign express companies] it shall be sufficient to aver the ownership of the money, goods, or property in and by the name set forth in the statement required to be made, filed, and recorded in section two of this Act [$2913]; and the record, or a certified copy thereof, of such statement shall be deemed and taken as sufficient proof, on the trial of any criminal case, of the name and legal existence of such copartnerships, associations of persons, joint-stock associations, or companies.

[1881 S., p. 114. In force September 19, 1881.]. 1755. When sufficient. 180. The indictment or information is sufficient, if it can be understood therefrom

First. That the indictment was found by the grand jury of the county or the information presented by the Prosecuting Attorney of the circuit in which the Court was held.

Second. That the defendant is named or described in an indictment as a person whose name is unknown to the grand jurors, or in an information to the Prosecuting Attorney.

Third. That an offense was committed within the jurisdiction of the Court, or is triable therein.

Fourth. That the offense charged is clearly set forth in plain and concise language, without unnecessary repetition.

Fifth. That the offense charged is stated with such a degree of certainty that the Court may pronounce judgment, upon a conviction, according to the right of the case.

1. Only certainty to a common intent is required in an indictment. McCool v. State, 23 Ind. 127. But in a plea in abatement, the certainty required at common law is still necessary.-Hardin v. State, 22 Ind. 347; Ward v. State, 48 id. 289.

1756. When not to be quashed. 181. No indictment or information shall be deemed invalid, nor shall the same be set aside or quashed, nor shall the trial, judgment, or other proceeding be stayed, arrested, or in any manner affected, for any of the following defects::

First. For a mistake in the name of the Court or county, in the title thereof.

Second. For the want of an allegation of the time or place of any material fact, when the venue and time have once been stated in the indictment or information.

Third. That dates and numbers are represented by figures..

Fourth. For an omission of any of the following allegations, viz.: "With force and arms"; "contrary to the form of the statute"; or "against the peace and dignity of the State of Indiana."

Fifth. For an omission to allege that the grand jurors were impaneled, sworn, or charged.

Sixth. For any surplusage or repugnant allegation, when there is suffi cient matter alleged to indicate the crime and person charged.

Seventh. For the omission of the words "as appears by the record." Eighth. For omitting to state the time at which the offense was commit. ted in any case in which time is not the essence of the offense; nor for stating the time imperfectly, unless time is of the essence of the offense. Ninth. For omitting a statement of the value or price of any matter or thing, or the amount of damages or injury, in any case where the value or price or the amount of damages or injury is not of the essence of the offense.

Tenth. For any other defect or imperfection wnich does not tend to the prejudice of the substantial rights of the defendant upon the merits.

1757. Copy to accused. 182, Whenever requested by the accused or his counsel, the Clerk of the proper Court shall make and deliver to the accused a copy of the indictment or information, provided the person accused has been arrested.

1758. Pleadings by accused. 183. The only pleading necessary on the part of the accused is either a motion to quash or a plea.

1759. Motion to quash. 184. The defendant may move to quash the indictment or information when it appears upon the face thereof, either

First. That the grand jury which found the indictment had no legal authority to inquire into the offense charged.

Second. That the facts stated in the indictment or information do not constitute a public offense.

Third. That the indictment or information contains any matter which, if true, would constitute a legal justification of the offense charged or other legal bar to the prosecution.

Fourth. That the indictment or information does not state the offense with sufficient certainty.

1. By the defendant's consent, a mistake in the indictment may be corrected in Court. McCorkle v. State, 14 Ind. 39.

2. A motion to quash is irregular pending a plea. Leave should be first obtained to withdraw the plea -- West v. State, 48 Ind. 483.

1760. Accused, when not discharged. 185. If the motion to quash be sustained, the defendant shall not be discharged, unless the Court should be of the opinion that the objection can not be avoided by a new indictment or by a new or amended information and affidavit. And in case an indictment is quashed, the Court shall direct the case to be re-submitted to the grand jury which found the indictment, or to another grand jury, or the Court may direct the Prosecuting Attorney to prepare and file an information, upon a proper affidavit, against the defendant, charging him with the offense in proper form; and like proceedings shall be had in case an information is quashed, and the same can not be amended without a new affidavit. And the Court must detain the defendant in custody, or recognize him with sufficient surety, if the offense be bailable, to answer to the offense, and, if necessary, recognize the witnesses to appear and testify. 1761. Demand of trial or discharge. 186. In any case where the defendant is charged with a felony upon indictment, and the indictment has been quashed, and no grand jury is in session; or when the cause has been appealed to the Supreme Court, and reversed on account of defects in the indictment, he shall have the right to demand that he be prosecuted by affidavit and information without delay; and if the Prosecuting Attor ney fail to so prosecute, the defendant shall be discharged from custody, provided that upon a statement by the Prosecuting Attorney that he is unable to procure from any one the necessary affidavit, the defendant shall be held to await the action of the next grand jury.

1762. Arraignment. 187. If the motion to quash be overruled, the defendant shall be arraigned by the reading of the indictment or information to him by the Clerk, unless he waive the reading; and he shall then be required to plead immediately thereto; but the Court, for cause shown, may grant him further time to answer.

1. A trial without a plea is error; and the verdict will be set aside. If the record do not contain a plea, it must be taken that there was none.- Tindall v. State, 71 Ind. 314. But see section 1891,

1763. Plea of not guilty. 188. In all criminal prosecutions, except as in the next section provided, the defendant may plead the general issue orally, which shall be entered on the minutes of the Court; and, under it, the defendant may show and prove in the trial that he has before had judgment of acquittal, or been convicted or pardoned for the same offense, or any matter of defense except insanity.

I. A former conviction before a Justice, upon a prosecution procured by the defendant for the fraudulent purpose of avoiding adequate punishment, is no bar to a subse quent prosecution for the offense.- Watkins v. State, 68 Ind. 427.

2. Upon an indictment for murder, the defendant, having been found guilty of

manslaughter, obtained a new trial. Held, that he thereby consented to be tried again for murder, and waived the acquittai thereof implied by the verdict.- Veatch v. State, 60 Ind. 291.

3. The acquittal by a Justice of the Peace is no bar to another prosecution for the same felony. State v. Morgan, 62 Ind. 35.

1764. Plea of insanity. 189. When the defendant desires to plead that he was of unsound mind when the offense was committed, he, himself, or his counsel must set up such defense specially in writing; and the Prosecuting Attorney may reply thereto by a general denial in writing.

I. The legal presumption of sanity is sufficient, until there be evidence engendering a reasonable doubt thereof; and then the prosecution must, by evidence, establish sanity beyond a reasonable doubt. The defendant is not required to have a prepon. derance of evidence upon the question. Guetig v. State, 66 Ind. 94.

2. Temporary insanity, the result of voluntary existing intoxication, is no defense. It is otherwise, when the habit of drunkenness has so impaired the faculties that when sober the man is insane.- Fisher v. State, 64 Ind. 435.

1765. Acquittal for insanity. 190. When a person tried upon an indictment or information for a public offense is acquitted on the sole ground that he was insane at the time of the commission of the offense, the fact shall be found by the jury in their verdict, or by the Court, if tried by it; and the defendant shall not be discharged, but shall be forthwith proceeded against upon the charge of insanity; and the verdict of the jury or finding of the Court shall be prima facie evidence of his insanity. The proceedings shall conform to those prescribed for the admission of the insane, but no preliminary statement in writing shall be required.

1766. Standing mute. 191. If a defendant stand mute or refuse to plead to an indictment or information, a plea of not guilty must be entered by the Court, and the trial proceed.

1767. Plea of guilty. 192. If the accused plead guilty, such plea shall be entered on the minutes, and he shall be sentenced, or he may be placed in the custody of the Sheriff until sentence. And if an accused be under the age of twenty-one years, the Court may, in its discretion, withhold sentence, and order that the accused be released during good behavior; and the Court shall have full power to order his or her re-arrest and to pronounce sentence whenever the conduct of the accused shall, in the opinion of the Court, make such action proper..

[1881 S., p. 114. In force September 19, 1881.].

1768. Trial, where had. 193. Every criminal action shall be tried publicly in the county in which the offense shall have been committed, except as otherwise provided in this Act.

1769. Affidavit for change. 194. The defendant may show to the Court, by affidavit, that he believes he can not receive a fair trial, owing to the bias and prejudice of the Judge against him, or to excitement or