The appellant was prosecuted in the court below, by affidavit and information, for the larceny of a horse. He pleaded not guilty, and on trial was convicted and sentenced to two and a half years imprisonment in the state-prison.
• It is assigned for error that the court had no jurisdiction of the cause, and that the court erred in overruling the appellant’s motion for a new trial.
The counsel for the appellant contend that the act in relation to prosecutions of felonies by affidavit and information in certain cases, Acts 1879, p. 143, is unconstitutional. In the case of Heanley v. The State, ante, p. 99, we held the act to be constitutional, and we deem it unnecessary to enter upon any further consideration of the question.
The affidavit in this case, after having charged the larceny, proceeds as follows: “And affiant further says that there is no grand jury in session at this term of said Warren Circuit Court, and that the defendant is now in the jail of said county on said charge.”
This, it seems to us, was sufficient to show that the de*280fondant was in custody on a charge of the offence stated in the affidavit, and that no grand jury was then in session. •
The information follows the affidavit in the statement of the offence, and professes to bo in the name of the prosecuting attorney, except that in the part in relation to the absence of a grand jury, etc., it says, “and affiant further says that there"is no grand jury in session,” etc.
The information ought to be in the name of the prosecuting attorney, and if a motion to quash bad been made, on the ground that the word “affiant” was used in that part of the information, instead of the words “prosecuting attorney,” it would seem that the motion should have been sustained, unless an amendment had been made. But we think that, by going to trial without objection, the appellant treated the allegation as having been made by the prosecuting attorney, as was probably intended, and that the objection can not be here raised for the first time, on an assignment of error questioning the- jurisdiction of the court.
In the order of proceedings the motion for a new trial appears to have been made after the rendition of judgment. In criminal cases the application for a new trial must be made before judgment. 2 R. S. 1876, p. 409, sec. 143; Romaine v. The State, 7 Ind. 63.
We find no error in the record.
The judgment below is affirmed, with costs.