McLaughlin v. State

52 Ind. 279

• Court: Indiana Supreme Court
• Decided: November 15, 1875
• Status: Published

Opinion

Biddle, C. J.

Prosecution for an assault and battery, by affidavit and information. Motion to quash the information overruled; exception. Plea not guilty; trial by the court; finding guilty; fine; motion for a new trial overruled; exception; appeal.

The affidavit charges, in the proper form, that Raleigh McGloffin committed an assault and battery on the person of Eliza Welborn. The information alleges that Raleigh McLauflin committed an assault and battery on the person of J. Eliza Welborn.

According to section 25, p. 395, 2 G. & H., “ an information may be amended in matter of substance, or form, at any time before the defendant pleads, without leave; and at any time after the defendant pleads, with leave of the court.”

On motion, the court below would, doubtless, have granted leave to amend the information to make it correspond with the affidavit. But, as the case must be reversed on another point, the insufficiency of the evidence, and as the information may be amended to correspond with the affidavit, we do not decide the question on the motion to quash. Miles v. The State, 5 Ind. 215; The State v. Wise, 7 Ind. 645; Mount v. The State, 7 Ind. 654.

There is no evidence showing that the appellee committed an assault and battery on the person of Eliza Welborn. There is evidence tending to show that he committed such an offence on Mrs. Welborn; but this may mean one Mrs. Welborn as well as another. The name of the injured party is a part of the description of the offence, and must be strictly proved, or no safe conviction can follow. This is probably a mere omission, but it is a defect fatal to the case.

The judgment is reversed; cause remanded, with instructions to sustain the motion for a new trial, and to grant leave to amend the information.