Information-General Form.

in plain and concise language, and file the same with the clerk, or deposit it with the prosecuting attorney.

SEC. 21. When a peace officer recognizes or commits any one for an offense which may be prosecuted by information, he must file the affidavit containing the charge in the clerk's office, for the action of the prosecuting attorney.

SEC. 22. When an affidavit is filed with the clerk or prosecuting attorney for an information, the names of the witnesses must also be furnished.

SEC. 23. The prosecuting attorney must file an information as soon as practicable, in term or vacation, in every case, after the charge is made by affidavit.

SEC. 24. The affidavit must be filed with the information. SEC. 25. An information may be amended in matter of substance or form, at any time before the defendant pleads, without leave, or at any time after the defendant pleads, with leave, of the court. The information may be amended on the trial, as to all matters of form and variance, at the discretion of the court, when the same can be done without prejudice to the rights of the defendant.

SEC. 26. No amendment shall cause any delay of the trial, unless for good cause shown by affidavit. 2 R. S. 376, 377,

art. 4.

The affidavit must allege the same offense and persons subsequently charged in the information, but the information need not. follow the affidavit in the manner in which it sets forth the particular facts which constituto the offense. 7 Ind. 654.

Ambiguity or uncertainty in an information, will be construed most strongly against the state. 23 Ind. 61.

The affidavit must be sufficient in the description of the offense charged; if it is defective, a sufficient information will not cure it. 14 Ind. 280; 7 1d. 237, 654, 645.

Where, on appeal to the supreme court, an affidavit upon which an information was based, purported to have been made in the county, where the cause was tried before one A. B., but without designating his office, and a motion to quash was made and overruled, it must be presumed that the court below was fully advised that he was a person authorized to administer oaths. 15 Ind. 190.

The statement in the caption of the title of the court to which an

Affidavit-General Form.

information is presented is sufficient, without naming the county.

21 Ind. 277.

The circuit court can not try a charge of felony upon information. 46 Ind. 453.

An information must be based upon affidavit first filed; it is not sufficient that the information itself is verified. 14 Ind. 109. And if no affidavit has been filed, judgment will be arrested. 4 Ind. 524.

An affidavit sworn to upon the belief of the affiant is equivalent to one sworn to in absolute and direct terms, and will support an information. 14 Ind. 380.

The charging part of an information, or affidavit, being the same as the charging part of an indictment, it follows that the general statements, as to what an indictment shall contain, also apply to informations and affidavits. The reader is, therefore, referred to the preceding section.

For form of affidavit, see next section.

SEC. 3. AFFIDAVIT-GENERAL FORM.

STATE OF INDIANA,

SPENCER COUNTY.

} ss.

James Smith, being first duly sworn, upon his oath says that John Doe, on the tenth day of April, in the year 1877, at the county of Spencer and State of Indiana, unlawfully was found in a state of intoxication in a public place, to wit: Upon the public streets and walks of the town of Rockport.

JAMES SMITH.

Subscribed and sworn to before me, this 12th day of April, 1877.
R. W. MURRAY, J. P. [SEAL.]

Note. As has already been remarked in the preceding section, prosecutions for misdemeanors may be carried on in the circuit court by information based upon affidavit. But, before a justice of the peace, a prosecution may be commenced by affidavit alone, and no information is necessary. The above form may be used in a prosecution before a justice of the peace, but the same form may also be used in the circuit court to base an information upon, when the offense comes within its jurisdiction.

For forms of affidavits, etc., in criminal cases, before a justice of the peace, see 2 R. S. 676.

i

Affidavit-General Form.

An affidavit may be made upon the belief of the affiant. 14 Ind. 280; 9 Id. 543; 31 Id. 67; 47 Id. 208.

An affidavit against a defendant for a misdemeanor, charged him by his surname, alleging his Christian name to be unknown. Held, on motion to qaush, that he was sufficiently identified. 6 Ind. 281. A defect in an affidavit can not be cured by an information. 7 Ind. 237.

An affidavit, to be good, must contain all the substantial averments of an indictment or information. See 7 Ind. 654, 237. An affidavit purporting to have been made before one A. B., without designating his office, is good, if the court is fully advised that the person is authorized to administer oaths. 15 Ind. 190. For a sufficient affidavit for provoking an assault, see 29 Ind. 20.

For a sufficient affidavit for obstructing a highway, see 31 Ind. 67. For a sufficient affidavit for an assault, see 46 Ind. 289. Where, on appeal to the circuit court, in a prosecution for a misdemeanor, instituted before a justice of the peace, the state moved for leave to file a substituted affidavit, the original having been lost from the files, and filed affidavits showing that said original was not on the files and had been lost, but did not produce or offer to file a substitute, the motion was properly overruled, and the prosecution was thereupon properly dismissed for the want of an affidavit. 46 Ind. 378.

A prosecution can not be commenced by affidavit alone, in the circuit court. 47 Ind. 120; 48 Id. 251, 383.

For a case where a jurat to an affidavit was held sufficient, see 47 Ind. 180.

SEC. 1. MURDER IN THE FIRST Degree.

SEC. 2. If any person of sound mind shall purposely, and with premeditated malice, or in the perpetration, or attempt to perpetrate any rape, arson, robbery, or burglary, or by administering poison, or causing the same to be done, kill any human being, such person shall be deemed guilty of murder in the first degree, and upon conviction thereof shall suffer death. 2 R. S. 423.

SEC. 4. Any person convicted of treason or murder in the first degree, may, instead of being sentenced to death, in the discretion of the jury, be imprisoned in the state prison during life. 2 R. S. 425.

CHARGES.

1. Murder by stabbing.
day of

in the year

That A. B., on the at said county, did feloniously, purposely, and with premeditated malice, unlawfully kill and murder C. D., by then and there feloniously, purposely, and with premeditated malice, unlawfully striking, cutting, stabbing, and mortally wounding the said C. D. with a knife, which he, the said A. B., then and there had and held in his hands.

Murder in the first degree.

county, did feloniously, purposely, and with premeditated malice,
unlawfully kill and murder C. D., by then and there feloniously,
purposely, and with premeditated malice, beating, striking, and
mortally wounding the said C. D. with a club, which he, the said.
A. B., then and there had and held in his hands. Bicknell's Crim.
Pr. 257.

—, in the year

3. By strangling.
That A. B., on the
day of
at said
county, did feloniously, purposely, and with premeditated malice,
unlawfully kill and murder C. D., by then and there feloniously,
purposely, and with premeditated malice, fixing, tying, and fasten-
ing, about the neck of the said C. D., a certain rope, which rope
the said A. B. then and there had and held in his hands, and by
then and there feloniously, purposely, and with premeditated mal-
ice, unlawfully dragging, pulling, choking, strangling, and dislocat-
ing the neck of the said C. D. with said rope.

4. By administering poison.

day of

in the year

That A. B., on the
at said
county, wickedly contriving and intending one C. D. feloniously
and purposely to kill and murder by administering poison, felon-
iously and purposely a large quantity of a certain deadly poison
called white arsenic, did then and there give and administer unto-
the said C. D., with intent that the said C. D. should take and
swallow down the same into his body, he, the said A. B., then and
there well knowing the said white arsenic to be a deadly poison;
and the said white arsenic so given and administered unto the said
C. D., by the said A. B., the said C. D. did then and there take and
swallow down into his body; by reason and means of which` said
taking and swallowing down said white arsenic into his body, as
aforesaid, the said C. D. then and there became and was mortally
sick and distempered in his body, of which mortal sickness and
distemper the said C. D., from the said day of, in the same

year, at the county aforesaid, did languish and live, on which said,
day of, in the year aforesaid, at the county aforesaid, the
said C. D., of the said mortal sickness, died. And so the jurors
aforesaid, upon
their oath aforesaid, do say that the said A. B. him,
the said C. D., in the manner and form and by the means aforesaid.
feloniously and purposely did kill and murder. 1 Whart. Crim.

Pr. 125.