Brogan v. State , 199 Ind. 203 ( 1927 )

This is an appeal in a criminal case, in which the only question presented is the sufficiency of the amended affidavit upon which appellant was prosecuted and convicted of burglary in the second degree. Same, omitting the formal parts, reads as follows: "The undersigned affiant (E.D. Baker) being first duly sworn upon oath says that on or about the 22nd day of May, 1926, at and in the County and State aforesaid, one Albert Brogan did then and there unlawfully, feloniously and burglariously, in the nighttime break and enter into four railroad cars, the numbers being PFE-11038, SRL-16891, NADX-1984, PFE-20794, of the New York, Chicago and St. Louis Railroad Company, then and there situate, with intent then and there feloniously and burglariously to take, steal and carry away the goods and chattels, in the possession of and consigned for transfer to the New York, Chicago and St. Louis Railroad Company then and there being, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Indiana." Appellant's motion to quash the amended affidavit was overruled. The crime charged is defined in § 2, ch. 165, acts of 1915, § 2447 Burns 1926.

It is claimed by appellant that the amended affidavit alleged four distinct offenses, and, therefore, was bad for duplicity. An indictment or affidavit is not bad for duplicity for joining in one count, as one offense, 1, 2. offenses committed at the same time by the same person as parts of the same transaction, and subjecting defendant to the same punishment. Davis v. State (1885),100 Ind. 154. In State v. Paul (1891), 81 Iowa 596, 47 N.W. 773, it was held that an indictment for trespass that charged the accused with cutting down and carrying away growing trees from two separate tracts of land, the property of persons named, was not bad as charging two separate offenses, if the cutting upon both tracts was a single transaction. In Furnace v. State (1899), 153 Ind. 93, 54 N.E. 441, it was said that an information charging that defendant, at a time and place named, "did then and there unlawfully and feloniously steal, take, and carry away of the personal goods and chattels of Jane Engle, $5 in money, and the personal goods and chattels of Samuel Engle, $4.50 in money," etc., was not bad for duplicity, as it prima facie disclosed that the larceny occurred at the same time and place and constituted but a single transaction. In deciding that case, this court stated that the necessary import of the words "then and there," as employed in the information, was that the larceny of the money, part of which belonged to one person and part to another, occurred at the same time and place and constituted but a single transaction. The words "then and there" are used in the amended affidavit under consideration, and must be taken to mean that the breaking and entering into four railroad cars occurred at the same time and place and was a single transaction. InKnopf v. State (1882), 84 Ind. 316, cited by appellant, the court said: "When several acts relate to the same transaction, and together constitute but one offense, they may be charged in the same count, but not otherwise." The cases relied upon by appellant do not sustain his position when applied to the facts stated in the amended affidavit. Same was not bad for duplicity.

It is insisted by the appellant that the amended affidavit did not state the offense with sufficient certainty as it did not contain facts to show whether the railroad cars were open 3. or closed cars. The statute under which appellant was convicted provides that whoever in the nighttime or day time breaks and enters into various named structures, one of which is "railroad car," with intent to commit a felony, shall be deemed guilty of the crime of burglary in the second degree. InEwing v. State (1921), 190 Ind. 565, 131 N.E. 43, an affidavit which charged appellant with burglarizing a freight car belonging to a named railroad company, was held to allege every fact necessary to show a violation of the act which defines burglary in the second degree. The amended affidavit, in describing the places broken and entered into, followed the language of the statute in charging the offense and was sufficient in that particular.

It is also insisted by the appellant that the amended affidavit was not approved by the prosecuting attorney and because of that defect the motion to quash should have been sustained. The 4. record shows, after the signature of the maker to said affidavit, the following: "Subscribed and sworn to before me this 24th day of June 1926, and approved by me. Minnie C. Baker Deputy Clerk S.C.C." It does not appear that same was approved by the prosecuting attorney. When an affidavit has been made as provided by statute, the prosecuting attorney shall approve the same by indorsement, using the words "approved by me," and sign the same as such prosecuting attorney. § 119, ch. 169, acts of 1905 (Acts 1905 p. 611), § 2151 Burns 1926. An affidavit must be indorsed "approved by me," and signed by the prosecuting attorney before filing or it may be quashed. Cole v. State (1907), 169 Ind. 393, 82 N.E. 796; Robinson v. State (1912), 177 Ind. 263, 97 N.E. 929; Davy v. State (1923), 192 Ind. 604, 137 N.E. 553;Parish v. State (1923), 194 Ind. 44, 141 N.E. 786; Sabo v.State (1926), 197 Ind. 210, 150 N.E. 103. In Cole v. State,supra, this court said: "The legislature appears to have made the approval of the affidavit by the state's representative a condition or requirement preceding its filing with the clerk of the court and the recording thereof by the latter officer, and it can have no standing or effect as a pleading or document in the case until authenticated by the approval of the prosecuting attorney as the law exacts." The regularity of filing an affidavit is tested by a motion to quash. Hoover v. State (1887), 110 Ind. 349, 11 N.E. 434. As the amended affidavit was not approved by the prosecuting attorney; it was error for the lower court to overrule the motion to quash same.

Judgment reversed, with instructions to sustain appellant's motion to quash the amended affidavit.

It is further ordered that the clerk of this court make and certify to the warden of the Indiana State Prison an order for the return of the appellant to the custody of the sheriff of Starke county.

Martin, J., dissents with opinion.