State v. Buxton

31 Ind. 67

• Court: Indiana Supreme Court
• Decided: May 15, 1869
• Status: Published

Opinion

Gresoby, J.

This was a prosecution commenced before a justice of the- peace- for obstructing a highway.

The affidavit charges, “that on or about the 15th day of August, 1868, at .the said county of Jefferson, in the- State-of Indiana, one James B. Buxton did unlawfully obstruct a highway, then and there situate, being the highway running nearly north and south through section nine, town' three, range eight east, from the Scaffold Lick and Kent road to-the Lexington and Paris road, in said county and State, by then and there unlawfully erecting fences across said highway, as affiant is informed and believed,”

The court below, on motion of the defendant,quashed the-affidavit and dismissed the case. The State appeals.

It is claimed, that the affidavit is defective in three particulars : first, that the road is not sufficiently described; second, that the particular place on thoroac! where the obstruction was erected ought to have been stated; and lastly, that the charge is made on information and belief.

There is nothing in these objections.

The road is described in its beginning, terminus, and course; this is sufficient.

It was enough to charge- that the obstruction was within the jurisdiction of the court.

The form given in the statute is this; “A— B— swears (or affirms) that on or about the — day of —■ 18—, át said county, C— D—, as affiant verily believes (here state the offense).” 2 C. & II. 642, sec. 31, It is claimed, that this belief must be founded on personal knowledge of the facts. If such had been the intention of the legislature, the words “as affiant verily believes” ought to have been omitted.

It frequently occurs that the perpetrator of crime is convicted on the testimony of a number of witnesses swearing to different parts of the transaction constituting the body of the offense. No one person could swear on personal knowledge that the accused was guilty, and yet any one of the numerous witnesses might with a clear conscience have made the affidavit for the arrest.

Zb Z7. Williamson, Attorney General, and H. R. ¿J- J. L. Wilson, for the State. EL W. Harrington and G. A Eorbly., for appellee.

Some objection is made to the affidavit on the ground, that the word ^‘believed” is in the past tense, but this was evidently a mistake in the draftsman. The affidavit itself shows that the affiant was speaking as to his then present belief.

Judgment reversed, with costs; cause remanded, with-direction to overrule the motion to quash the affidavit.