Appellant was prosecuted upon an affidavit for having violated the provisions of §388 of the act of 1905 (Acts 1905, pp. 584, 670, §2280 Burns 1908), by unlawfully trespassing on certain described lands situated in Washington county, Indiana, and owned by Frank A. Bundy. lie unsuccessfully moved to quash the affidavit. Upon his plea of not guilty, he was tried by a jury and a verdict returned, finding him guilty as charged and assessing his punishment at a fine of $5. He moved in arrest of judgment and for a new trial. These motions the court overruled, and rendered judgment on the verdict. Appellant appealed, and the only error assigned is the overruling of the motion to quash the affidavit.
1. The argument advanced by counsel to show that the trial court erred in denying the motion to quash is that the affidavit does not contain the indorsement of the prosecuting attorney, “approved by me,” as required by §119 of the act concerning public offenses (Acts 1905, pp. 584, 611, §1990 Burns 1908. An examination of the affidavit as it appears in the record verifies the contention of counsel for appellant in respect to the indorsement thereon, for there is an entire absence of the indorsement by the prosecuting attorney as required by §1990, supra. Section 118 of the act in question (§1989 Bums 1908) provides that “all public offenses, except treason and murder, may be prosecuted in the circuit or criminal court, by affidavit filed in term time, ’ ’ etc. Section 1990, supra, reads as follows»
2. By the change made under §1989, supra, in our criminal code, the legislature intended that the method authorized under the old code of prosecuting a criminal offense on affidavit and information should be eliminated, and that all public offenses, except treason and murder, may be prosecuted upon affidavit alone.- It was intended that such affidavit should be substituted as a pleading upon the part of the State for the information authorized by the old code, and that it alone should perform all of the functions of an affidavit and information.
1. It will be noted that §1990, supra, expressly requires that the prosecuting attorney shall approve the affidavit by indorsement, using the words “approved by me,” and subscribe or sign his name to such approval, after which the affidavit shall be filed with the clerk of the court, who shall indorse thereon the date of the filing, and record the same as in case of an indictment, as provided by
3. The word “filed” as used in the clause “by affidavit filed' in term time,” as the same appears in §1989, stupra, when read in the light of §1990, supra, evidently was intended for “made,” and such clause should be'read, “by affidavit made in term time,” instead of “filed.” The legislature certainly did not intend that there should be a dual filing of the affidavit with the clerk. By §110 of the same statute (§1981 Burns 1908) it is provided that when an indictment is found by a grand jury it must be signed by the prosecuting attorney and indorsed by the foreman of the grand jury as “a true bill,” to which indorsement he must subscribe his name. This is but a reenactment of the same provision found in our former criminal codes, and certainly is no more mandatory than is the provision of §1990, supra, requiring the prosecuting attorney to approve the affidavit as therein required. The language used in §1981, supra, is: “It [the indictment] must also be indorsed by the foreman,” etc., as a true bill, and his name subscribed to such indorsement; while the language employed by §1990, supra, is: “The prosecuting attorney shall approve the same by indorsement, using the words ‘approved by me’ and sign the same,” etc. As far back as the appeal of Townsend v. State (1828), 2 Blackf. 151, this
4. In Johnson v. State (1864), 23 Ind. 32; Strange v. State (1887), 110 Ind. 354; State v. Buntin (1890), 123 Ind. 124, and Denton v. State (1900), 155 Ind. 307, and many other cases, this court has held that in the absence of the indorsement imperatively required by the statute, an indictment must be held bad on a motion to quash. These decisions are decisive of or at least influential upon the question presented in this case. There can be no question but that the lower court, upon discovering that the prosecuting attorney had failed or neglected to approve the affidavit in dispute, might, before the -beginning of the trial thereon, have permitted him to approve it as required by the statute. His neglect or failure to discharge a plain and important official duty certainly renders him deserving of unfavorable criticism. In the absence of the required approval of the affidavit in controversy by the prosecuting attorney, appellant’s motion to quash should have been sustained. The lower court, therefore, erred in overruling the motion.
Judgment reversed and cause remanded.