
    August Iter v. The State of Indiana.
    
      Trial on Information.—Allegations Necessary.—Under the first danse of the first section of the statute (Acts of 1879, p. 143), it is necessary that an information allege that there was no grand jury in session at the time of filing the information. Under the second clause it must allege that the indictment quashed was for the same offense charged in the information.
    Filed June 22, 1881.
    Appeal from Allen Circuit Court.
   Opinion of the court by

Mr. Justice Woods.

This was a prosecution by affidavit and information against the appellant and one Emanuel Fox, for robbery.

Motion to quash the information overruled, and exception. Trial of the appellant, conviction and judgment.

Error is assigned upon the overruling of the motion to quash.

The portion of the information which was designed to show the authority or power of the court to try the appellant upon affidavit and information, without indictment, was as follows: “And this court is further informed that said Emanuel Fox and August Iter, named in the affidavit of John Case, herewith filed, are now in the custody of the sheriff of Allen county, in the State of Indiana, and confined in the jail of said county on a charge of robbery, as set forth in the affidavit of John Case; and that an indictment was found by the grand jury and quashed, and that said grand jury is not now in session.

The statute on the subject provides, among other things, “that felonies may be prosecuted in the circuit and criminal courts by affidavit and information, in the following cases :

“First. When any person is in custody on a charge of felony, . and no grand jury is in session.
“Second. When an indictment has been found by the grand jury, and has been quashed.” Acts 1879, p. 143.

The averments of the information do not, as we think, bring the case within the statute.

There was an apparent attempt made, by the averments, to bring the case within both of the above specifications, but they fail to bring it within either of them. ,

The language of the second clause of the statute above quoted, “When an indictment has been found by the grand jury,” evidently means, when an indictment has been found by the grand jury for the felony on a charge of which the person charged is in custody. See Davis v.The State, 69 Ind. 130.

Samuel M. Hench, Henry C. Hanna, Jr., for appellant.

William S. O'ftourke, for appellee.

The information alleges “that an indictment was found by the grand jury and quashed. ” But for what the indictment was found, and against whom, does not appear.

It may, perhaps, be conjectured that the indictment was found for the offense charged in the information. But in criminal pleading it will not do to rest on conjecture.

In order that the allegation in respect to the finding and quashing of the indictment should have any force, it should have appeared that the indictment was for the offense charged in the information. Davis v. The State, supra. The case, therefore, is not shown to come within the second clause of the statute quoted. It remains to inquiré whether the averments bring the case within the first. It sufficiently appears that the appellant was in custody on a charge of the offense stated in the information. But this is not sufficient to authorize a prosecution for a felony by affidavit and information.

There must have been, in order to bring the case within the first clause, no grand jury in session at the time of filing the affidavit and information.

It does not appear from the information, as we think, that no grand jury was then in session. The language of the information is, that an indictment was found by the grand jury and quashed, and that said grand jury is not now in session.” The obvious and unmistakable meaning of this is, that the grand jury who found the indictment was not then in session.

When the indictment was found does not appear; and the allegation cannot be held to mean that no grand jury was in session at the time of filing the information.

The information does not show such a state of facts as authorizes the prosecution by affidavit and information, and the motion to quash should have been sustained.

The judgment below is reversed and the cause remanded.

The Clerk will give notice for the return of the prisoner from the State prison.  