DISSENTING OPINION I concur in the propositions of law stated in the main opinion but do not believe that Cole v. State (1907), 169 Ind. 393, 82 N.E. 796, as quoted from and the other cases cited to the same point, are applicable here, first because the prosecuting attorney's approval of the affidavit affirmatively appears from the record and second, because appellant has not been harmed by the alleged error. I therefore respectfully dissent from the judgment of reversal. *Page 208
The purpose of the statute requiring the prosecuting attorney to indorse the words "approved by me" on an affidavit charging a defendant with the commission of a crime (§ 2151 Burns 1926) is to prevent unauthorized prosecutions and to secure the sanction of the constituted legal authority. The prosecuting attorney here had notice of and approved this prosecution. The original affidavit after the signature of the affiant concludes:
"Subscribed and sworn to before me this 24th day of May A.D. 1926 and approved by me.
"Ted O. Hays, "Deputy Prosecuting Attorney."
The amended affidavit which was executed the same day as the original affidavit, which is set out in the opinion of the court, is substantially a copy of the original affidavit, except that two of the four car numbers were corrected. The prosecuting attorney appeared in open court and filed both the original and the amended affidavit, and conducted the trial of the cause.
Section 2225 Burns 1926 (§ 112, ch. 169, Acts 1905 p. 625) provides:
"No indictment or affidavit shall be deemed invalid, nor shall the same be set aside or quashed nor shall the trial, judgment or other proceeding be stayed, arrested or in any manner affected . . . for any . . . defect or imperfection which does not tend to prejudice the substantial rights of the defendant upon the merits."
Section 2394 Burns 1926 (§ 334, ch. 169, Acts 1905 p. 657) reads as follows:
"In consideration of the questions which are presented upon an appeal, the court shall not regard technical errors or defects, or exceptions to any decision or action of the trial court which did not, in the opinion of the court to which the appeal is taken, prejudice the substantial rights of the defendant," *Page 209 and although the cases cited in the prevailing opinion hold that it is error to overrule a motion to quash the affidavit where the prosecuting attorney has failed to indorse upon it the words "approved by me," yet the record here shows that this appellant has not in any manner been harmed or injured nor have his substantial rights been prejudiced by any technical defect in the affidavit or in any decision or action of the trial court complained of. In such a case, considering the statutes just quoted and the following cases, I believe such error is harmless and should be disregarded. Lay v. State (1913), 180 Ind. 1, 4, 102 N.E. 274; Williams v. State (1919), 188 Ind. 283, 288, 123 N.E. 209; Hay v. State (1912), 178 Ind. 478, 484, 98 N.E. 712; Clayton v. State (1885), 100 Ind. 201, 204; Boos v.State (1914), 181 Ind. 562, 570, 105 N.E. 117; Skaggs v.State (1886), 108 Ind. 53, 58, 8 N.E. 695; Coopenhaver v.State (1903), 160 Ind. 540, 544, 67 N.E. 453; Smith v.State (1917), 186 Ind. 252, 262, 115 N.E. 943; Hoffman v.State (1911), 176 Ind. 284, 285, 95 N.E. 1002; Reed v.State (1895), 141 Ind. 116, 123, 40 N.E. 525; Mason v.State (1908), 170 Ind. 195, 203, 83 N.E. 613; Sanderson v.State (1907), 169 Ind. 301, 315, 82 N.E. 525; Wood v. State (1883), 92 Ind. 269, 272; Walker v. State (1916),185 Ind. 240, 243, 113 N.E. 753; Galvin v. State (1884), 93 Ind. 550;Epps v. State (1885), 102 Ind. 539, 556, 1 N.E. 491; Norton v. State (1886), 106 Ind. 163, 165, 6 N.E. 126, Shears v.State (1897), 147 Ind. 51, 56, 46 N.E. 33.
A new trial is bound to bring about the same result and the only benefit to be gained by a reversal of this case will be the resultant lesson to prosecuting attorneys that they should more closely observe the requirements of the statute.
The following language used in Robinson v. State (1912),177 Ind. 263, 97 N.E. 929, cited in the court's *Page 210 opinion, is applicable, I believe, to the case at bar: "It would be a reproach to the law to require a judgment to be held for naught, and the state put to the expense of another trial, for a defect which did not prejudice the substantial rights of appellant." In the Robinson case it was pointed out "that the prosecuting attorney appeared in open court in person, and filed the affidavit," and that if the affidavit in fact "was not indorsed as required, and the trial court's attention had been directed to the defect by a motion to quash, before the beginning of the trial it could then have been properly indorsed." The motion to quash filed in the case at bar was based on two of the statutory grounds for such motion and read as follows: "The defendant in the above entitled cause moves to quash the amended affidavit herein for the following reasons: (1) That the affidavit does not state the facts with sufficient certainty; (2) that the facts alleged in the affidavit do not constitute a public offense." Nothing appears in this record which shows whether or not the lack of the prosecutor's indorsement of approval was brought to the attention of the trial court nor that the question was not first raised on appeal.