DISSENTING OPINION. I dissent from the opinion filed in this case for the following reasons:
The defendant was prosecuted under the criminal laws of the State of Indiana by an affidavit filed in the court below, which omitting the caption, signature, verification and approval, reads as follows:
"Ruth Glassburn swears he is informed and believes that Chester Gingerich and Mattie Gingerich, on or about the 12th day of November, 1947, at and in Jay County, State of Indiana, did then and there unlawfully being the parents of one Joseph Gingerich a child under the full age of sixteen (16) years and over the age of seven (7) years, to-wit: fourteen (14) years of age, permit, compel or encourage said Joseph Gingerich to become and remain absent from the public schools of the district which the said Joseph Gingerich was by law required to attend, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state of Indiana."
It is the law in Indiana that an affidavit or indictment attempting to charge a defendant with crime must be sufficiently certain to advise the defendant of the particular law he is intended to be charged with violating. Pease v. State (1921),74 Ind. App. 572, 577; Alderson v. State (1924), 196 Ind. 22, 28, 29; § 9-1104, Burns' 1942 Replacement.
The indefiniteness and uncertainty of the above affidavit is so gross that the learned judge who wrote the majority opinion could only identify the law upon which it is based thus:
"This is an appeal from a final judgment in a case wherein appellant was charged with violating the Indiana compulsory school attendance law. Acts 1921 General Assembly, Ch. 132; §§ 28-501 et seq. Burns' 1948 Replacement." *Page 689
As originally enacted the law contained 29 sections covering 18 pages of the Acts from page 337 to 355. Succeeding legislatures have added eight additional sections so that it now contains 37 sections, covering 20 pages of the statute cited. From the majority opinion we might conclude that the defendant was convicted of violating the entire law. This, of course, is quite impossible, and produces a situation of great confusion, due to the uncertainty of the affidavit and likewise of the majority opinion.
An affidavit or indictment charging a defendant with a crime not defined by any statute of the State of Indiana is a nullity and this is true whether the affidavit is attacked by a motion to quash, motion in arrest of judgment or is merely attacked by a plea of not guilty. § 9-2401, Burns' 1942 Replacement; State v.Gosselin (1939), 110 Vt. 361, 365, 366; State v. Ryea (1923), 97 Vt. 219, 221; Kellerman v. United States (1924), 295 Fed. 796, 798; United States v. Leach (1923), 291 Fed. 788, 792; People v. Patrick (1941), 26 N.Y.So.2d 183, 186. Such an affidavit or indictment may even be attacked after a plea of guilty. State v. Ulrich (1902), 96 Mo. App. 689; 31 C.J., Indictments and Informations, § 536, p. 874, 875; State v.Levy (1893), 119 Mo. 434; 42 C.J.S., Indictments and Informations, § 319, p. 1348. See also Romary v. State (1945), 223 Ind. 667, 670, 64 N.E.2d 22; Laycock v. State (1893), 136 Ind. 217, 225, 36 N.E. 137. It will be noted that the affidavit charges that the defendant did permit, compel or encourage a certain child, named Joseph Gingerich, "to becomeand remain absent from the public schools of the district whichthe said Joseph Gingerich was by law required to attend." This affidavit is not in the words or in the substance of any penal statute contained in the compulsory education *Page 690 law or in any other law of the State of Indiana and is therefore a nullity.
The law governing in such a situation is well stated in 31 C.J., Indictments and Informations, § 536, p. 874, 875, thus:
"But generally the objection that the indictment or information fails to describe various acts intended to be proved with that reasonable certainty which the law requires, or fails to charge an offense known to the law, or states no offense within the jurisdiction of the court, is fatal at any stage, and not being waived by failure to take advantage thereof at any preliminary stage of the proceedings. Failure to charge definitely essential elements of the offense is not waived by failure to move to quash the information or to arrest judgment thereon. Defects of substance are not cured by plea." (My italics).
As said in Julian v. The People (1920), 67 Colo. 152, 153:
"There being no such offense as that with which plaintiff in error was charged, he could, by no act of his, give the court jurisdiction to try him for such offense. Jurisdiction of the subject matter is given by law, and cannot be conferred by consent."
See also State v. Reyner (1907), 50 Oregon 224, 227. See also 27 Am. Jur., Indictments and Informations, § 187, p. 731; State v. Tupa (1935), 194 Minn. 488, 260 N.E. 875, 99 A.L.R. 147;Ulmer v. State (1859), 14 Ind. 52, 54, 55; Randolph v.State (1860), 14 Ind. 232; Hatwood v. State (1862),18 Ind. 492; Littell v. State (1892), 133 Ind. 557, 580, 33 N.E. 417; § 9-1104, Burns' 1942 Replacement.
This definite, well supported and controlling principle of law is ignored by the majority opinion. *Page 691
Section 17, the penalty section of the Compulsory Education Act provides a penalty only for violations of Section 1 to 17 inclusive of the act, so we may omit any consideration of the remaining sections so far as this case is concerned.
A careful examination of sections 1 to 17 inclusive of the act clearly indicates that the affidavit upon which appellant was convicted must have been intended to be predicated entirely upon a violation of the first sentence of Section 5 in conjunction with the first sentence of Section 8 of the Act. These two sentences read as follows:
"Sec. 5. Unless otherwise provided herein, every child between the ages of seven and sixteen years shall attend public school, or other school taught in the English language which is open to the inspection of local and state attendance and school officers; and such child shall attend such school each year during the entire time the public schools are in session in the school district in which such child resides . . ."
"Sec. 8. Every parent and guardian of any minor child or ward shall be held legally responsible for any violation of this act by such child or ward, unless such parent or guardian is not a party to such violation . . ."
A serious question arises whether under this act the term "legally responsible" includes criminal responsibility. I do not believe it does or that it was intended to do so. I do not think this court can lawfully assume that the affidavit in this case charges this defendant with a criminal violation of the two parts of the sections above quoted.
The opinion suggestively intimates that the affidavit may be fatally defective but that since its sufficiency was not questioned by a motion to quash, "a motion in arrest of judgment, or otherwise either in the trial *Page 692 court or here upon appeal," the defects were waived. This might be true where there is a defect in the form of the affidavit but it is true then only because of the legal principle attempted to be stated but I think defectively stated, in the next sentence of the opinion, as follows: "If the evidence offered to support the affidavit was sufficient to show an offense the shortcomings of the affidavit need not be taken into account by this court on its own motion on appeal. They will be considered cured by the finding of guilty by the court." I think the last sentence in this quotation is quite erroneous. A finding or verdict does not cure an affidavit or indictment that is defective in substance.Alderson v. State, supra. I think it is always the law that unless an affidavit or indictment states facts sufficient to constitute a public offense under the statutory laws of our state no amount of evidence could cure this defect. Littell v.State, supra. Regadanz v. State (1908), 171 Ind. 387, 393. I think it is also true that if an essential element of the offense attempted to be charged is not contained in the affidavit or indictment and there is no evidence to sustain the omitted element no finding of a court or verdict of a jury can cure the defect. Alderson v. State, supra.
It is also true that "any ambiguities and uncertainties in an indictment or affidavit will be construed most strongly against the state." Ewbanks Indiana Criminal Law § 311, p. 184 (2d ed.). Littell v. State, supra, and cases there cited.Regadanz v. State, supra. The opinion cites 41 Am. Jur., Pleading, § 404, p. 572, as sole authority for the quoted statement. I might call attention to the fact that this quotation is limited by its author to principles governing pleadings in civil actions and does not purport to deal with or consider pleadings in *Page 693 criminal prosecutions. See 41 Am. Jur., Pleading, § 1, p. 287. It is true that by failing to question the affidavit by a timely motion to quash or motion in arrest of judgment, the pleading may not be thereafter attacked for deficiencies in form if there aresufficient averments in substance in it to charge a publicoffense but this does not mean that the sufficiency of the evidence to sustain the pleading may not be thereafter attacked. The appellant still had the right to insist that every material fact legally essential to constitute the offense attempted to be charged in an affidavit should be established by the evidence. This is true even in civil actions. Prudential InsuranceCompany v. Ritchey (1918), 188 Ind. 157, 162, 119 N.E. 369, 119 N.E. 484; Jackson, Rec. v. Rutledge (1919), 188 Ind. 415, 425, 122 N.E. 579; Jackson, Rec. v. Atwood, Admx. (1923),194 Ind. 56, 57, 140 N.E. 549; Princeton Coal Co. v. Dowdle (1924), 194 Ind. 262, 268, 142 N.E. 419; Terre Haute, etc.Traction Co. v. Scott (1926), 197 Ind. 587, 598, 150 N.E. 777;Thompson v. Divine (1920), 73 Ind. App. 113, 117, 126 N.E. 683; Slifer v. Williard (1922), 78 Ind. App. 88, 91, 131 N.E. 87, 132 N.E. 321; Irwin v. Harbough (1922), 78 Ind. App. 175, 177, 134 N.E. 905; Citizens, etc., Trust Co., Admr. v. TerreHaute, etc., Trac. Co. (1923), 79 Ind. App. 491, 496, 135 N.E. 802; Angell v. Arnett (1924), 81 Ind. App. 614, 617, 142 N.E. 720; Fowler, Gdn. v. Ball, Exrs. (1924), 82 Ind. App. 167, 171, 141 N.E. 64.
Undoubtedly the defendant as the father of the child in question, even if a good affidavit was on file, could not be held legally responsible and much more so could not be held criminally responsible unless he caused his child to be absent from school during the entire time *Page 694 the public schools were in session in the district in which thechild resided. A careful perusal of the evidence in the case conclusively shows that there was no evidence on this proposition whatever. Under our plan of government in Indiana each township is a school township §§ 28-2401, 28-2402, Burns' 1948 Replacement, § 60-1102, Burns' 1943 Replacement. Appeals from decisions of township trustees with reference to school matters may be taken § 28-2405. The trustee shall take charge of the educational affairs of his township, establish schools etc. § 28-2410, and shall have the care and management of all school property § 28-2411. He shall receive and expend the school revenue including tuition revenue apportioned to his township etc. § 28-2412. He shall keep a record of his proceedingsrelative to the schools of his township etc. § 28-2413. For any failure to discharge any of his duties relative to the schools the trustee may be penalized § 28-2416, and his books and papers relative to schools are subject to inspection §§ 28-2418, 28-2419, 28-2420.
When proper action is taken, the township trustee may transfer a pupil from the district in which he resides to another district of this state, or an adjoining state, §§ 28-3701, 28-3702, 28-3703, 28-3704.
But there is no contention in this case that the child in question had been transferred from the school district in which he resided in Green Township to the Pennville School in Penn Township agreeable with the statutes noted above.
The sole contention that could be made is that he had been transferred under the statutes providing for the abandonment of schools, §§ 28-2801 to 28-2808 inclusive Burns' 1948 Repl. § 28-2801 prohibits a township trustee from abandoning any school in his township, *Page 695 unless he procure the written consent of a majority of the legal voters of the township; except schools having an average daily attendance of twelve persons or fewer. § 28-2802 provides for the abandonment of any school in the township upon a petition therefor signed by a majority of the legal voters of the school district or corporation. § 28-2803 compels the township trustee to discontinue schools in which the average daily attendance during the preceding school year was 15 pupils or fewer, and authorizes him to discontinue schools in which the average daily attendance during the preceding school year was 20 pupils or fewer under conditions and subject to the exceptions described in that section of the statute. In the event of an abandonment of schools under this statute, it provides for the assignment and transportation of the school children to another school district. §§ 28-2804, 28-2805 and 28-2806 provide further for the transfer and transportation by the township of pupils between the ages of 6 and 12, from discontinued or abandoned schools. § 28-2807 provides that when sixty per cent of the resident taxpayers of a school township petition the trustee of the school township for the abandonment of a high school within the school township, it shall be the duty of the trustee to abandon the high school and provide for the education and transportation of the pupils living within such school township in the township, or in other townships. § 28-2808 provides if a majority of the resident freeholders of any school district in a township petition the township trustee to abandon the school in such school district and consolidate it with some other school or schools in the township the trustee may comply with the petition.
If the school in the school district in which appellant and his 14 year old son resided in Green Township had *Page 696 been discontinued or abandoned, and he had been assigned to a school in Penn Township, certainly the affidavit must state that fact. If we assume, though wrongfully, that the averment in the affidavit is sufficient on this subject (after verdict) certainly there must be convincing evidence in the record to show that each requirement of the statute of abandonment or discontinuance had been substantially complied with by the township trustee, before there could be any guilt on the part of appellant. The legal abandonment of the school in the school district in which the child resided and his legal assignment to another school is an essential element of the offense charged and must be shown by legal evidence beyond a reasonable doubt. Rhodes v. State (1946), 224 Ind. 569, 572, 70 N.E.2d 27; Scherer v. State (1919), 188 Ind. 14, 18, 121 N.E. 369; Sharp v. State (1919),188 Ind. 276, 279, 123 N.E. 161; Hinshaw v. State (1919),188 Ind. 447, 124 N.E. 458.
A presumption of innocence always prevails in favor of a defendant who is charged with crime. § 9-1806, Burns' 1942 Replacement. This presumption not only requires the state by its indictment or affidavit to state such facts as will "inform an innocent man of the facts to be shown against him," but as stated by Willoughby, J. in Alderson v. State, supra, at page 29 it "must contain a statement of facts constituting the offense charged against the defendant. The defects of an indictment arenot cured by a verdict". (My italics). If these facts must be contained in the indictment or affidavit, and we assume (contrary to fact) that they are contained in this affidavit, certainly then they must be proven by legal evidence. The majority opinion says: "It appears that all the public schools in Green Township had been abandoned and school *Page 697 children of that township attended the schools of Penn Township which adjoined." It is not even contended that there is any legal evidence of this fact, and having read the bill of exceptions I must say there is no such evidence. The only pretended evidence on the subject is by one Logan, County Superintendent of Schools for Jay County, who seems to have orally stated, (as contained in appellant's brief which the state in its brief accepts as correct) "there are no schools in Green Township and there are children of school age in Green Township. It has been provided for children of school age in Green Township to attend by areas Pennville School from northwest quarter; the southwest quarter to the Governor I.P. Gray School and the east half the Portland schools. Green Township has been divided for the benefit of sending children to adjacent township schools." The Green Township schools "were abandoned before I became Superintendent."
The presumption of innocence which cloaks and protects every defendant accused of crime, placed the burden upon the state to prove the lawful abandonment of the schools of Green Township in the manner provided by §§ 28-2801 to 28-2807, inclusive. This proof must be made by the written record of the Green Township Trustee who made the order of abandonment — if in existence. Only when its loss or destruction is proven can secondary evidence be introduced, and it must then be the best secondary evidence. The County Superintendent has nothing to do with the abandonment of township schools, except possibly on appeal and his oral evidence on the subject is little if any better than mere rumor. It is necessarily mere "hearsay." This matter under the law is solely for the township trustee, and when he acts to abandon the schools of his township he must make a written record *Page 698 of his action (§ 28-2413, Burns' 1948 Repl.) and he may not act at all until he procures the written consent of a majority of the legal voters of the township (§§ 28-2801, 28-2802, Burns' 1948 Repl.) or if it be the abandonment of a township high school a written petition signed by sixty per cent of the resident taxpayers of the school township asking for the abandonment, (§ 28-2807, Burns' 1948 Repl.). With the presumption of innocence protecting appellant, this essential evidence must be in the record before a conviction can be sustained. No such evidence is in the record. A township trustee abandoning all the schools in his township without the necessary petitions or written consent signed by the necessary number of legal voters acts illegally and the appellant could not by such illegal act of the township trustee be compelled by our compulsory attendance laws to send his son to a designated school outside the township in which he resides. In the absence of such evidence, in a criminal case, no presumption or inference of regularity can be indulged in favor of the trustee or of the State. Indeed the presumption is in favor of the defendant that no such action ever had been taken, that no such evidence is in existence and that the defendant therefore cannot be guilty. To me there is no question that the finding of the court is not sustained by sufficient evidence and is contrary to law. The judgment should be reversed.