Swiney v. State

21 N.E. 1102, 119 Ind. 478, 1889 Ind. LEXIS 312

Opinion

Olds, J. —

This is a prosecution for an assault and «battery. The paper purporting to be an affidavit, upon which the prosecution is based, does not appear to have been sworn to. There was a motion to quash the affidavit, which was overruled, and exceptions, and the ruling is assigned as error.

It is .contended by counsel for the State that the objection that the affidavit was not sworn to is not presented by a motion to quash. We think it is. A motion to quash reaches all defects apparent on the face of the affidavit or indictment. Cooper v. State, 79 Ind. 206; Heacock v. State, 42 Ind. 393; Whart. Crim. Pl. and Prac. (9th ed.), section 350; 1 Bishop Crim. Proc. (3d ed.), section 763; Maxwell Crim. Proc., p. 521.

Filed June 26, 1889.

In the case of Cantwell v. State, 27 Ind. 505, it was held that such a paper was no affidavit. See, also, State Bank v. Hinchcliffe, 4 Ark. 444, and McDermaid v. Russell, 41 Ill. 489, which hold the same.

The court erred in overruling the motion to quash.

Judgment reversed.