Thayer v. State

11 Ind. 287

• Court: Indiana Supreme Court
• Decided: December 8, 1858
• Status: Published

Opinion

Hanna, J.

This was a prosecution for a riot, against the defendant and twenty other persons. The defendant was tried separately by a jury, and found guilty, &c. Motion for a new trial, and in arrest of judgment, overruled. Judgment on the verdict.

But one point is made in the brief of counsel, and that is, that the affidavit and information do not charge a public offense, and, therefore, the judgment should have been arrested.

The affidavit states that on, &c., at, &c., “three persons and more, to-wit,” &c., naming twenty-one, “ did, in a violent, riotous, and tumultuous manner, unlawfully break open the doors of the house of, and destroy certain,” &c., “the property of this affiant.” The information follows the affidavit.

It is insisted in argument that this affidavit is not sufficient, because it does not charge any particular persons, nor that the act was done in a violent, &c., manner, nor the ownership of the house, nor that it was to the terror of. the people, or committed in Boone county.

We think it was not necessary to allege that the act was to the terror, &c. There is a direct charge against all the persons named in the affidavit, treating the words “three persons and more, to-wit,” as surplusage, which it is proper ■ to do. The venue having been once stated in the affidavit, it was not necessary, under our statute, to repeat it to every material allegation. The other objections are not well taken.

O. S. Hamilton, for the appellant.

Per Curiam. — The judgment is affirmed with costs.