State v. Lauderman , 89 Ind. 600 ( 1883 )

Niblack, C. J.

This was a prosecution against George Lauderman, under section 2098 of the Bevised Statutes of 1881, upon affidavit and information, for selling intoxicating liquor to be drunk as a beverage after eleven o’clock at night.

Lauderman pleaded in abatement that the prosecution was not commenced by first filing with the clerk of the Huntington Circuit Court the affidavit of some competent and reputable person charging the offence, with, also, the names of the witnesses; that the only affidavit on file in the cause was one written upon the same sheet with, and attached to, the information ; that said affidavit was made and deposited with the prosecuting attorney, who did not file the same until he had prepared an information in the cause, when both it and the information were filed at the same time. Wherefore it was averred that this prosecution was not commenced in the manner prescribed by law.

The State demurred to this plea in abatement, and the court overruled the demurrer. The State declining to plead further, final judgment was rendered in favor of Lauderman, and he was discharged.

Error is assigned only upon the overruling of the demurrer to the plea in abatement.

In the case of State v. De Long, 88 Ind. 812, a plea in abatement precisely similar to the one filed in this case was considered, commented upon and held to be insufficient, upon the ground that an affidavit, in cases like this, is filed in time when it is filed with the information.

Upon the authority of that case the judgment appealed from in this case will have to be reversed.

The judgment is reversed, with costs, and the cause remanded for further proceedings.