
    The State v. Toohy.
    
      PRACTICE.—Motion for Leave to File Paper.—Criminal Law.—Affidavit.— Where, on appeal to the circuit court, in a prosecution for a misdemeanor instituted before a justice of the peace, the State moved for leave to file a substituted affidavit, the original having been lost from the files, and filed affidavits - showing that said original was not on the files, and had been lost, but did not produce or offer to file a substitute, the motion was properly overruled, and-, the prosecution was thereupon properly dismissed for want of an affidavit.
    From the Ohio Circuit Court.
    
      y. C. Denny, Attorney General, and D. T. Downey, for the State.
    
      y. R. Troxett, for appellee.
   Osborn, J.

This was a prosecution for a misdemeanor,, instituted before a justice of the peace, where judgment was¡ rendered against the appellee, who appealed to the circuit court. In that court, the State, by her prosecutor, asked leave to file a substituted affidavit to supply the original, which had been lost from the files, and in support of the motion filed affidavits showing that the original was not on the files, and had been lost. The State did not produce, or offer to file, a substitute. The motion for leave to file the: substituted affidavit was overruled, and the prosecution was dismissed for want of an' affidavit.

In Richardson v. Howk, 45 Ind. 451, we held that it was not error to overrule a motion for leave to file a paper, unless it appeared by the record that the party asking the leave offered to file it, and that it was a legitimate paper to be filed in the cause.

If, in the case at bar, the State had offered to file a substituted affidavit, and the bill of exceptions contained a copy of such affidavit and proof showing that it was a substitute, the question would be before us, whether itwas a case where a substitute was allowed to be filed. But there is nothing of the kind in the record.

The judgment of the said Ohio Circuit Court is affirmed.  