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From an order quashing the information, the state appeals. Reversed.
C. W. Miller, L. G. Rothschild, O. O. Hadley, N. C. Grake, and C. G. Scofield, for the State. Geo. A. Knight, for appellees.
of the corporation and no notice of the nonpayment of the note, and supposed the note had been paid, until June, 1902, when the payee demanded payment, have no effect to regain the right which had been lost because not exercised within the limitations of the statute. The facts are ruled by the law as declared in Fisher v. Tuller, 122 Ind. 31, 23 N. E. 523. See, also, Cincinnati, etc., R. R. Co. v. Heaston, 43 Ind. 172; King v. Snedeker, 137 Ind. 503, 37 N. E. 396; Rat. cliff V. Leunig, 30 Ind. 289; Freeman v. State, 18 Ind. 484.
It is contended that in some of our earlier cases, notably Voris v. State, 47 Ind. 345 (against heirs of deceased surety on guardian's bond), Blair V. Allen, 55 Ind. 409 (against heirs for breach of ancestor's warranty), Stevens v. Tucker, 87 Ind. 109 (against heirs of surety on guardian's bond), and also, as following these cases, in Harmon v. Dorman, 8 Ind. App. 461, 35 N. E. 1025 (against devisees for breach of testator's warranty), Whittern v. Krick, 31 Ind. App. 577, 68 N. E. 694 (against heirs for breach of ancestor's warranty), a different view of the law has been expressed. Since certain covenants run with the land, we think at least three of the cases mentioned are distinguishable, but, so far as any of them may be said to conflict with the law as declared in Fisher v. Tuller, supra, and in this case, the said cases from this court are modified, and those of the Appellate Court disapproved, to the extent of said conflict.
Judgment of the Marion superior court is affirmed.
MONTGOMERY, J. On the 13th day of June, 1904, an affidavit in three counts was filed with a justice of the peace of Clay county, charging that on August 30th, 1902, appellees (1) uttered, published, and passed to the clerk of the Clay circuit court certain forged notes; (2) uttered, published, and passed to Edward C. Scheutz, as administrator of the estate of William Baxter, Sr., deceased, the same forged notes; and (3) that on the
day of August, 1902, appellees forged and counterfeited said notes—to defraud the estate of William Baxter. A warrant was issued upon this affidavit, and appellees were arrested thereon and brought before the magistrate. The hearing was fixed for June 18th, but on that date was by agreement postponed until August 2d. Upon the hearing appellees' were found probably guilty as charged, and required to enter into a recognizance for their appearance at the next term of the Clay circuit court. On the first day of the next term of said court the prosecuting attorney filed an information in three counts, based upon an affidavit of the same affiant, but taken before the clerk of the court on October 10, 1904, and containing the same charges as the original affidavit. Appellees thereupon filed their motion and affidavit for a change of venue, which was sustained, and the venue of the cause changed to the Putnam circuit court. In the latter court appellees' counsel submitted a motion to quash each count of the affidavit and information, which was sustained, and to this decision the state excepted, and prayed an appeal to this court. The assignment of errors requires us to determine the sufficiency of each count of the affidavit and information.
It is first insisted that the affidavit and information show that the prosecution of the offense charged is barred by the statute of limitations. The statute applying to this case reads as follows: "In all other cases, prosecutions for an offense must be commenced within two years after its commission." Section 1665, Burns' Ann. St. 1901. In Bishop on Statutory Crimes, 261, the learned author, after a discussion of the subject, says: “It is believed to be the general understanding in our tribunals that a criminal prosecution is begun when a complaint is made to a magistrate who issues his warrant of arrest." This conclusion is fully sustained by an exhaustive collection of decided cases. In the case of State v. Miller, 11 Humph. 505, in construing a statute similar to ours, it was said: “The circuit court, regarding the time when the indictment was found to be the commencement of the prosecution, within the meaning of the act, quashed
STATE V. SIMPSON et al. (No. 20,703.)* (Supreme Court of Indiana. Jan. 9, 1906.) 1. CRIMINAL LAW-LIMITATION OF PROSECUTIONS-AMENDMENT OF PROSECUTION.
A prosecution for forgery and the uttering of forged notes is commenced, within the statute of limitations (Burns' Ann. St. 1901, 8 1665), when an affidavit is filed with the justice of the peace and a warrant issued thereon for the arrest of the accused.
[Ed. Note.—For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 282.] 2. SAME.
In a prosecution for forgery and uttering forged notes, amendments of the preliminary affidavit before the defendant pleaded in the circuit court, authorized as a matter of right by Burns' Ann. St. 1901, § 1804, did not operate to terminate the prosecution or interrupt its continuity, so as to affect the operation of the statute of limitations. 3. INFORMATION-DESCRIPTION OF ACCUSED.
The use of the terms "B." and "B, Sr.," interchangeably in a preliminary affidavit and information, did not constitute such repugnance as to render them fatally defective; the addition of "Sr.” being mere matter of description.
Appeal from Circuit Court, Putnam County; P. 0. Colliver, Judge.
Benjamin Simpson and others were prosecuted for forgery and uttering forged notes.
*On petition for rehearing, see 76 N. E. 1005.
the indictment, from which judgment the court discloses some slight amendments. Attorney General, in behalf of the state, ap Such amendments are expressly authorized as pealed in error to this court. We are of a matter of right at any time before the deopinion his honor, the circuit judge, erred in fendant pleads, and upon being made the his construction of the statute. When it affidavit must be sworn to. Section 1804, provides that ‘all prosecutions by presentment Burns' Ann. St. 1901. The making of such or indictment for misdemeanor, shall be com amendments in this case did not operate to menced within twelve months,' we under terminate the prosecution and discharge the stand the Legislature to refer to the com defendants from custody. The quashing of mencement of the prosecution, and not to an affidavit and information or an indictment the finding of the indictment. The warrant, does not ipso facto terminate prosecution, apprehension, and requiring bail for the ap but the court is required in such event to pearance of the party at the circuit court hold the defendant upon his recognizance, certainly constituted a prosecution of the unless it should be "of the opinion that the offender, and of this prosecution the warrant objection cannot be avoided by a new inis the commencement. The indictment is the dictinent, or by an amended information and method by which the issue is made up on affidavit.” Section 1829, Burns' Ann. St. 1901. which the party is to be tried. It is a prose It is clearly shown that the proceedings cution, therefore, by indictment, although the before the justice of the peace were bad prosecution is commenced by warrant. The within two years after the commission of meaning is that prosecutions for misdemean the alleged offense, and such proceedings conors, the trial of which must be by present. stituted the commencement of this prosecument or indictment, shall be commenced in tion. It is further shown that appellees, 12 months. The limitation refers to the com having been thus brought into the custody mencement of the prosecution, and not to the of the court, were not discharged therefrom finding of the indictment.” In the case of until after the ruling quashing each count State v. Erving, 19 Wash. 435, 53 Pac. 717, of the affidavit and information. The proupon this question the court said: “But ceeding was accordingly continuous, and the counsel is mistaken in the assumption that prosecution not terminated by the filing of the prosecution of this case was not com an amended or substituted affidavit, charging menced within three years after the alleged the same offenses. The circuit court takes commission of the crime, viz., July 11, 1894. judicial knowledge of the facts disclosed by From the record and the briefs of counsel the record in any given case, and it was it sufficiently appears that the defendant was therefore manifest that this prosecution was arrested on the 22d day of June, 1897, and commenced within two years from the al. had a preliminary examination before a jus leged time of the commission of the offense, tice of the peace upon this very charge. That and was not barred by the statute of limiexamination resulted in his being held for tations. Counsel for appellees cite the cases trial in the superior court, and was the com of Gardner v. State, 161 Ind. 262, 68 N. E. mencement of the prosecution, within the 163, and Hoover v. State, 110 Ind. 349, 11 X. meaning of the statute.” In the case of E. 434, in support of the contention that this State v. Howard, 15 Rich. Law, 274, 282, the prosecution is barred by the statute. The Court of Appeals of South Carolina said: Gardner Case decided only that a prosecution "The complaint made to a magistrate is the begun in the circuit court by indictment
to will be deemed to have been commenced arrest the act of limitation"--citing State 5. Fraser, 2 Bay, 96; State v. James, 2 Bay, into court by the proper grand jury. In the 215; and State v. May, 1 Brev, 160. In Ross Hoover Case it was held that the filing of v. State, 55 Ala. 177, it was held that the an affidavit, and an information based therecourt properly charged the jury that in case on, with the clerk of the circuit court in of petit larceny, if a warrant for the arrest vacation constituted the commencement of a of the defendant was issued and returned by prosecution as against a defendant in cusa proper officer within 12 months after the tody at the time. These cases in no way commission of the offense, then the statute conflict with the conclusion above announced, of limitations of 12 months would be no bar. It is next insisted that there is such reSee, also, Molett v. State, 33 Ala. 408, 412; pugnance between each count of the affidavit Commonwealth v. Christian, 7 Grat. 631; and the corresponding count of the inforNewell v. State, 2 Conn. 38; and Rex v. Wil mation as to make the same fatally defeclace, 1 East O. L. 186. The courts of last tive; and, also, that there is manifest reresort in the states of Nebraska, California, pugnance in the allegations of each count Missouri, and Florida have rendered deci of the affidavit without reference to the insions seemingly in conflict with the result formation. The first count of the affidavit reached in the cases above cited. The dif charges that appellees uttered certain forged ference, however, is readily explained by an notes to the clerk of the Clay circuit court examination of the language of the statutes as a claim against the estate of William of limitation of those states.
Baxter, deceased, to defraud the estate of A comparison of the affidavits filed before said William Baxter, and the count of the the justice of the peace and in the circuit information based thereon makes the same
76 N. E. 35
charge, but concludes with the allegation is entitled to the child's custody as an incident that it was to defraud the estate of said
of the office of guardian. William Baxter, Sr. The sum of the ob
(Ed. Note.—For cases in point, see vol. 25,
Cent. Dig. Guardian and Ward, 88 110–113.) jection is that in various parts of the affidavit and information William Baxter and
2. SAME-REMOVAL OF GUARDIAN.
Where a guardian of a minor whose parWilliam Baxter, Sr., are used as interchange
ents are dead is not a fit person to have the able terms. A like objection was urged on custody of the minor, the proper remedy is appeal in the case of Geraghty v. State, 110
by the removal of the guardian on petition of
the ward or any person in his behalf, as ex Ind. 103, 11 N. E. 1, and held to be untenable.
pressly authorized by Burns' Ann. St. 1901, $ It was expressly decided in Allen v. State, 2688. 52 Ind. 486, that the word "senior" or [Ed. Note.—For cases in point, see vol. 25, "junior" added to the name of a person re
Cent. Dig. Guardian and Ward, 88 78, 91.) ferred to in an indictment is mere matter
Appeal from Circuit Court, Henry County ; of description, constituting no part of the
W. O. Barnard, Special Judge. name, and need not be proved when proof
Petition for writ of habeas corpus by Maof the name is necessary. We are satisfied
tilda Booth against John Cottrell and anwith the doctrine declared in those cases,
other. From a judgment for plaintiff, de and, notwithstanding the strict rules appli
fendants appeal. Affirmed. cable to pleadings in cases of the class to which this belongs, find no sufficient reason
Fred C. Gause and W. A. Brown, for apto require or justify a different holding. It
pellants. Walker & Foster, for appellee. follows that the alleged repugnance was immaterial, and the objection founded thereon GILLETT, C. J. This is a babeas corpus untenable.
proceeding, instituted by appellee, who is the The third objection urged is that it does guardian of Ruby Pearl Miller and Lennie not sufficiently appear that the person whose
Wando Miller, minors, to obtain their cusname was signed to the notes, and the per
tody. The court below sustained appellee's son to be defrauded, are one and the same. exception to appellants' amended return, and, This contention is primarily founded upon
as they refused to plead further, final judg. the use of the letters "Sr.," and is disposed of
ment was rendered that they forthwith de by the principle and authorities which we liver said minors to the custody of appellee bave followed in overruling appellees' second
until the further order of the court. The ques. objection.
tion as to the sufficiency of said return is beIt is finally argued that the filing of an af
fore us. In substance, it charges that appellee fidavit before a justice of the peace, char
is a person of bad moral character, and is ging the commission of a felony, is not the
not a fit and proper person to have the cuscommencement of a prosecution, since a fus
tody and rearing of said children. tice of the peace has no authority or power
Section 6 of the guardianship act is as folto try such offenses. We have already con
lows: "Every guardian so appointed sball sidered this question, and it is our conclusion have the custody and tuition of such minor, that the jurisdiction of a justice of the peace
and the management of such minor's estate over felonies committed in his county is during minority, unless sooner removed or such that when an affidavit is filed with him
discharged from such trust: provided, that charging the offense, a warrant is issued the father of such minor (or if there be no thereon, and the defendant taken into cus
father, the mother, if suitable persons retody, a prosecution will be regarded as com
spectively) shall have the custody of the permenced, within the meaning of our statute
son and the control of the education of such of limitations.
minor." Section 2682, Burns' Ann. St. 1901. The court below erred in quashing each
Section 11 of said act provides that the court count of the affidavit and information, and
or judge may remove a guardian. upon a writthe judgment is reversed, with directions to
ten application of his ward, or of any person
upon behalf of such ward, for habitual drunkoverrule appellees' motion to quash as to each count of the affidavit and information,
enness, neglect of his duties, incompetency, and for further proceedings.
fraudulent conduct, removal from the state, or any other cause which in the opinion of such court or judge renders it for the interest of such ward that the guardian should be re
moved. Section 2688, Burns' Ann. St. 1901. COTTRELL et al. v. BOOTH. (No. 20,671.) The Civil Code authorizes the granting of (Supreme Court of Indiana. Jan. 11, 1906.)
writs of habeas corpus, in favor of guardians.
Section 1121, Burns' Ann. St. 1901. Where 1. GUARDIAN AND WARD-CUSTODY OF WARD.
the father and mother of an infant ward are Under Burns' Ann. St. 1901, § 2682, declaring that every guardian shall have the
dead, the provision of section 2682, supra, in custody of the minor ward, except that the favor of the guardian, is mandatory. Johns father or mother, if suitable, shall have the v. Emmert, 62 Ind. 533 ; Palin v. Voliva, 158 custody of the minor's person, and section 2688,
Ind. 380, 63 N. E. 760. Under the statutes authorizing the removal of a guardian where it is for the best interest of the minor, a
above cited, it is plain that in this case the guardian of a minor whose parents are dead right to the custody of the children is an in
cident of the off ce of the guardian; that this pointment, power, or authority he had from right may be enforced by habeas corpus; and and after that date to act as notary public that the initial step which respondents should in this state; that after he had so received take, if the state of facts alleged by them said commission, and had so qualified and in their return is true and they desire the taken upon himself the duties of a notary custody of said wards, is to make an applica- public, but long before the making of such tion under section 2688, supra, for the re affidavit, the duly elected, qualified, and moval of the guardian. The court below did
acting prosecuting attorney for Hamilton not err in sustaining the exception to the county, Ind., Fred E. Hines, duly and legalamended return.
ly appointed Carey as deputy prosecuting atJudgment affirmed.
torney within and for that county, he to receive as compensation for his services as such
deputy one-half of the fees allowed by law MeN(LTY v. STATE. (No. 5,837.)* to be taxed, which should be collected in each (Appellate Court of Indiana, Division No. 1.
case prosecuted by him as such deputy; that Jan. 10, 1906.)
Carey then duly accepted such appointment, 1. NOTARIES QUALIFICATION DE FACTO
entered upon his duties as deputy, prosecuted OFFICER-COLLATERAL ATTACK. Where one appointed a notary, who duly
a number of the pleas of the state, and colqualified and entered on the duties of his office, lected and received one half of the fees althereafter accepted a lucrative office, whereby
lowed by law to be taxed in such cases for under Burns' Ann. St. 1901, § 8041, his appointment was vacated, and subsequently took an
the prosecuting attorney, all of which prosaffidavit, made the basis of an information, the ecutions he conducted as deputy prosecuting legality of his act could not be questioned col attorney by virtue of said appointment by laterally in the prosecution.
Hines, and said fees were taxed and collected 2 INDICTMENT AND INFORMATION-PRELIMINARY AFFIDAVIT.
by him by virtue of his appointment as The fact that a notary wbo took an affidavit
deputy as aforesaid, until a short time prior on which an information was based was em to the making of said affidavit, when he was ployed for compensation to procure evidence on
discharged from such office by the prosecutwhich to base the prosecution and to act as an attorney in the prosecution was of no avail to
ing attorney, Hines; and at the time of the defendant
making of the affidavit Carey did not hold
such office of deputy prosecuting attorney; Appeal from Circuit Court, Hamilton Coun
that at no time after he so accepted the ty; Ira W. Christian, Judge.
office of deputy prosecuting attorney did Charles 0. McNulty was convicted of an
Carey take or receive any commission or unlawful sale of liquor, and he appeals. Af
authority to act as notary public within this firmed.
state, or qualify as such, nor at the time he Jno. F. Neal and J. F. Beals, for appellant. attempted to swear Powell to the affidavit C. W. Miller, L. G. Rothschild, W. C. Geake, was Carey a notary public, nor did he then and C. C. Hadley, for the State.
have any power or authority to administer
such oa to Powell. Second. It was further BLACK, P.J. This was a prosecution up averred that Carey had no authority, power, on affidavit and information for selling in or capacity to administer the oath to Powell, toxicating liquor at an unlawful hour; it because at and before the time of the making being charged that the appellant on or about, of the affidavit Carey had been employed by etc., at, etc., "did then and there, between some association, person, or persons unthe hours of 11 o'clock p. m. of such day, known to the affiant, but not the state of and 5 o'clock a. m. of the succeeding day, Indiana or any of its officers, to procure eviunlawfully sell to one Frank Burkhart, at dence to sustain this prosecution, and on and for the sum of 35 cents, certain intoxi behalf of said association or persons to act cating liquor in less quantity than a quart as attorney in the prosecution of this cause at a time, to be then and there drank by the for an agreed compensation, and was so actsaid Frank Burkhart as a beverage," etc. ing as such attorney at the time he adminisThe appellant filed his verified plea in abate
tered the oath to Powell, who had been and ment, a demurrer to which was sustained. then was employed by said unknown persons
The appellant denied the jurisdiction of or association to procure evidence upon the court over him for the following reasons: which to base this prosecution, for which he First. That the information was filed upon was to be paid an agreed compensation, all an affidavit made by one Oscar W. Powell, of which Carey at the time well knew; that purporting to have been sworn to before one by reason of the facts aforesaid Carey, at Walter L. Carey as notary public; that Carey the time he administered the oath to Powell, May 27, 1901, was duly appointed and coin had an interest in the commencement of this missioned by the Governor of the state of action and the prosecution thereof, and an Indiana, as a notary public, and then as such interest in the prosecution, by reason whereduly took the oath of office, qualified, gave of he was not disinterested, and had not bond, and entered upon the duties of the of capacity to administer as notary public fice, which appointment was the only ap such oath. *Rehearing denied April 20, 1906.
Assuming that the office of deputy prosecut
ing attorney is a lucrative office, by the ac which forbids an attorney who is also a ceptance of which the appointment of Carey notary public from administering an oath to as a notary was vacated under the statute his client. The propriety of such an act may (section 8041, Burns' Ann. St. 1901), yet he possibly be questioned, but the act is not had been duly appointed as a notary public illegal. The oath thus administered is a and was duly qualified as such and had enter legal oath, and, if untrue, the affiant might ed upon the duties of the office, and the act doubtless be convicted of perjury therefor." of administering the oath was an official act, See, also, Creighton v. Piper, 14 Ind, 182, 184. which a notary public de jure might proper Some objections are urged to the action ly perform, and while at the time of ad of the court in refusing an instruction and ministering the oath to the prosecuting wit in giving instructions, but none of these inness Carey had no lawful authority to act structions are set out, nor is the substance as a notary public, yet his administering the of any of them stated, in the appellant's oath was the act of an officer de facto, and brief. The evidence was such that this could not be questioned collaterally, as the court cannot interfere with the result reachappellant sought to do by his plea. In ad ed thereon in the trial court. ministering and in certifying the oath, Judgment affirmed. Carey was performing an act pertaining to the office of notary public under color of office by virtue of his appointment and qualification as a notary public. Though his
EVANSVILLE GAS & ELECTRIC LIGHT right to do so was subject to be questioned,
CO. V. RALEY. (No. 5,379.) he was not a mere usurper without any color
(Appellate Court of Indiana, Division No. 1. of authority. His official act could not be
Dec. 13, 1905.) questioned collaterally because of his hav
1. MASTER AND SERVANT-RISKS ASSUMED BY ing no legal right to continue to act as such
SERVANT-DISCOVERABLE DANGERS. officer, as it might if he were not such an of Where neither the employer nor employé ficer either de facto or de jure. Blackman
knew the condition of the appliances with wbich
and the place in which the employé was to V. State, 12 Ind. 556; Creighton v. Piper, 14
work, and no promise was made by the emInd. 182; Bansemer v. Mace, 18 Ind. 27, 81 | ployer nor complaint by the employé, the emAm. Dec. 344; Gumberts v. Adams Express ployé assumes the risks discoverable on using Co., 28 Ind. 181; Case v. State ex rel., etc.,
reasonable care to ascertain the condition of the
appliances he is to use and the place in which 69 Ind. 46; Leech v. State ex rel., etc., 78 Ind.
he is to work. 570; Mowbray v. State ex rel., etc., 88 Ind. (Ed. Note.-For cases in point, see vol. 34, 324; Baker v. Wambaugh, 99 Ind. 312; Park Cent. Dig. Master and Servant, $8574600, er v. State ex rel., etc., 133 Ind. 178, 200, 32
610-624.) N. E. 836, 33 N. E. 119, 18 L. R. A. 567;
2. SAME-LINEMAN IN SERVICE OF ELECTRIO Davidson v. State, 135 Ind. 254, 259, 34 N. E.
COMPANY-INSPECTION OF POLES-DUTY OF
An electric light and power company, emIgnoring the conclusions of law stated in ploying an experienced lineman to ascend poles the portion of the plea designated therein as
for the purpose of untying the wires preparatory
to transferring them to new poles, is not rethe second paragraph, it does not appear quired to inspect the poles and inform the linetherefrom that the notary public who ad man of their unsound condition, due to decay ; ministered the oath in question was inter
for the exercise of ordinary care on the comested as a party or could recover any judg.
pany's part would have disclosed no more than
the exercise of the same degree of care by the ment or be subjected to any judgment there employé, whose opportunities for observation in, or could become liable for any of the were the better of the two. costs accruing therein. It merely appears
3. SAME-ASSUMPTION OF RISK-BURDEN OF
PROOF. that the person who as notary public ad
An employé, suing for personal injury reministered the oath was employed, for an
ceived while engaged in the performance of the agreed compensation by persons unknown, duties of his employment, has the burden of to procure evidence on which to base the showing that the injury was not the result of
the risk assumed. prosecution and to act as an attorney in the
[Ed. Note.—For cases in point, see vol. 34, prosecution of the cause. The affidavit was
Cent. Dig. Master and Servant, & 907.) the basis of the information, and, if it would
4. SAME-KNOWLEDGE OF DEFECT-DUTY TO affect the question, it does not appear that DISCOVER. he was employed to procure false evidence or A lineman, employed by an electric light a false affidavit. Such matter did not con
company to ascend old poles and remove there.
from the wires preparatory to transferring then stitute a valid reason why the accused
to new poles, was injured by reason of a defet should not be held to answer to the charge of in a pole due to its decay, causing one of the misdemeanor. The administration of the climbing spurs to slip from the pole, in conseoath was within the statutory authority of
quence of which he came in contact with live
wires. He knew that the work of climbing poles the notary public, and we know of no stat and taking off the wire was dangerous, and that ute forbidding such an officer to act as the life of poles was limited, after which time such under the circumstances as alleged.
they would become unsound. He did not ascend
the pole relying on any examination by the In Yeagley v. Webb, 86 Ind. 425, it is said:
company, and he was not misled as to the “We know of no law in force in this state conditions surrounding him. No assurance of