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The State ex rel. Keen v. Wilson.

the demurrer, and an exception was taken. In that paragraph, it is alleged, that, at the time of the execution of the written instrument, set out in the answer, the said Mariah was an infant, under the age of 21 years, and incapable, in law, of making such instrument, or of making a valid contract, and she now disaffirms said instrument, and surrenders to the defendant all she has ever received from him, and tenders the same to him, &c. The issues of fact were submitted to the Court, who found for the defendant, and, having refused a new trial, rendered judgment, &c.

Are the rulings upon the demurrers correct? Section 17, of the act regulating prosecutions in cases of bastardy, says: "The prosecuting witness may, at any time before final judgment, dismiss such suit, if she shall enter of record an admission, that provision for the maintenance of the child has been made to her satisfaction, such entry shall be a bar to all other prosecutions for the same cause and purpose." 2 R. S. G. & H. p. 628. "As we understand this provision, the Court can not order the entry of admission to be made upon the record, unless at the instance of the prosecutrix herself, and until such entry is made, the suit can not be dismissed," but must progress to a final trial on the merits. The answer, then, is defective, because it fails to aver that the instrument, which it recites, was, by the consent of the relatrix, entered upon the record. It is not enough to allege, merely, that she filed her admission in Court. In Pickler v. The State, ex rel., &c., 18 Ind. 266, it was held, that "the statute requires the admission of the prosecutrix, 'that provision for the maintenance of the child has been made to her satisfaction,' to be confirmed and acted upon by her in open Court." Here there is no averment that she confirmed and acted upon the alleged admission; but if the facts, alleged in the reply, be true, and the demurrer concedes them to be so, she disaffirmed it. The answer does not, in our opinion, contain facts sufficient to

Wood v. The State.

constitute a defence to the action; and, that being the case, the demurrer to the reply should have not been overruled.

We have not looked into the evidence, for the reason that the record does not, as required by rule 30 of this Court, contain the averment, that "this was all the evidence given in the cause."

Per Curiam.-The judgment is reversed, with costs. Cause remanded.

David Nation and Thomas S. Watterhouse, for the appellant. C. E. Shipley, for the appellee.

WOOD V. THE STATE.

CRIMINAL LAW AND PRACTICE.-An information for retailing, without license, is not sufficient if it merely aver the sale of one pint of whisky, without averring that it was sold in a less quantity than one quart.

STATUTES CONSTRUED.-The temperance law of 1859 prescribes no penalty against the sale of intoxicating liquor, in quantities of one quart or more, on Sunday.

APPEAL from the Dekalb Common Pleas.

Per Curiam.-The information in this case is against John Wood for selling "one pint of whisky on Sunday." The information is not good, as a charge of selling less than a quart under the general license law; because, though the defendant is charged with selling one pint, still, if he sold a barrel, he sold a pint, because a pint is contained in a barrel. Struckman v. The State, at this term.

If the information should be held as charging the sale of more than a quart, then there is no penalty for making such

The State v. Mathis et al.

The

sale on Sunday. The State v. Thomasson, 19 Ind. 99. prosecution should have been under a different statute. Sohn V. The State, 18 Ind. 389.

The judgment is reversed. Cause remanded to be dismissed.

D. E. Palmer, for the appellant.

Oscar B. Hord, Attorney General, for the State.

WOOD V. THE STATE.

APPEAL from the Dekalb Common Pleas.

Per Curiam.-The judgment in this case is reversed, for the reasons assigned in the next preceding case.

D. E. Palmer, for the appellant.

Oscar B. Hord, Attorney General, for the State.

THE STATE V. MATHIS et al.

CRIMINAL LAW AND PRACTICE.-In an information, the statement in the caption of the title of the Court to which the information is presented is sufficient, without naming the county.

SAME.-A public street in a town or city is a public highway, and it is sufficient in an information to describe it as a public street.

APPEAL from the Bartholomew Common Pleas.

DAVISON, J.-The information in this case is as follows: "State of Indiana v. John D. Mathis and Samuel Hege-In the Bartholomew Common Pleas : Jeptha D. New, prosecuting attor

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The State v. Mathis et al.

ney, &c., informs the Court that the defendants, on or about the 1st of September, 1862, owned a saw mill on Jackson street, in the town of Columbus, Bartholomew county, Indiana, which obstructed and hindered, and ever since hath continued to obstruct and hinder, the free passage of a public street of known notoriety, to-wit: Jackson street aforesaid, in the town, county and State aforesaid, in front of said saw mill, by piling lumber from said mill on said street in front of said mill, to the great annoyance and injury of the citizens of the town, county and State aforesaid," &c.

The defendants moved to quash the information. Court sustained the motion and the State excepted.

The

This information is said to be defective on two grounds: 1. Its caption does not state the county in which the prosecution was instituted. 2. It charges the obstruction of a public street instead of a public highway. The first ground is untenable. See Malone v. The State, 14 Ind. 220. A statement of the title of the Court to which the information is presented is sufficient, without naming the county. 2 G. & H. pp. 400, 403, 404; and, moreover, the offence is charged to have been committed in Bartholomew county. But Malone v. The State, supra, is decisive, that the first ground of objection is not well taken. Nor is the second at all available. "A public street in a town is a public highway." Conner v. New Albany, 1 Blackf. 43, 45; Common Council, &c. v. Croas, 7 Ind. 9, 12. It may be that the town of Columbus is incorporated and has assumed by her by-laws to punish offences of this character; but whether this be so, does not appear in the record, and hence we must intend that the Common Pleas had full cognizance of the case made by the information.

Per Curiam.-The judgment is reversed, with costs. Cause remanded.

Oscar B. Hord, Attorney General, and John Mullany and Francis T. Hord, for the appellant.

Hitchcock et al. v. The State.

HITCHCOCK et al. v. THE STATE.

CRIMINAL LAW AND PRACTICE.-In a criminal prosecution on appeal, where the clerk returns to a certiorari that the papers are lost and copies of the indictment or information can not be given, the judgment below will be reversed by this Court.

APPEAL from the Tippecanoe Circuit Court.

PERKINS, J.-Prosecution for burglary. The record shows no indictment or information against the defendants. In a return to a certiorari, the Clerk says the papers are lost, and copies, therefore, can not be given.

The judgment will, of course, have to be reversed, and the defendants will be remanded back to the jail of Tippecanoe county for final disposition by the proper Court of that county.

It is not improper that we should here remark, that, through the carelessness of the county clerks in making proper entries of the filing of indictments and informations, and in the keeping of them on file after they are filed, the efficiency of the administration of the criminal law is greatly impaired. How are so many indictments and informations lost? Some measures should be adopted to correct this grievous abuse, or the criminal code may as well be abrogated.

Per Curiam.-The judgment below is reversed, and the clerk directed to certify to the keeper of the penitentiary to return the prisoners to the Lafayette jail in Tippecanoe county. McDonald & Roache, for the appellant.

Oscar B. Hord, Attorney General, for the State.

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