Opinion
No. 29,136.
Filed June 15, 1954.
1. CRIMINAL LAW — Indictment and Affidavit — Sufficiency of Words "As Affiant Verily Believes". — An affidavit made upon information and belief is sufficient and the recital "as affiant verily believes" is equivalent to "upon information and belief." p. 392.
2. CRIMINAL LAW — Indictment and Affidavit — Prosecuting Attorney — Approval and Indorsement — Failure to Show Entire Title of Prosecuting Attorney — Judicial Notice. — Where prosecuting attorney complied with statute in indorsement and signature on affidavit but left off part of his title, "for First Judicial Circuit of Indiana," judicial notice will be taken of his particular circuit. p. 392.
3. CRIMINAL LAW — Indictment and Affidavit — Failure to Charge Injured Party Was Human Being. — The failure of the affidavit to charge that the injured party was "another human being," is a charge that is devoid of merit. p. 392.
From the Vanderburgh Circuit Court, Ollie C. Reeves, Judge.
Arlin James Brooks was charged with assault and battery with intent to commit murder and he was convicted. This appeal followed.
Affirmed.
Lorin H. Kiely, of Evansville, for appellant.
Edwin K. Steers, Attorney General, and Owen S. Boling and Thomas M. Crowdus, Deputy Attorneys General, for appellee.
Appellant was convicted of assault and battery with intent to commit murder.
He alleges as error:
1. That the affidavit, not being made by the prosecuting attorney, or the complaining witness, or injured party, should allege the "facts upon which he believed and based" the charges. The affidavit contained the words "as affiant verily believes."
2. That the approval of the affidavit shows approval by "Paul B. Wever, Pros. Atty.," but does not show his entire title, "for the First Judicial Circuit of Indiana."
3. That the affidavit fails to charge that the injured party was "another human being."
We shall answer these contentions as they are above presented.
1. An affidavit made upon information and belief is sufficient. State v. Bingman (1934), 206 Ind. 486, 190 N.E. 176. 1. The recital "as affiant verily believes" is equivalent to "upon information and belief."
2. The statute provides that:
"When such affidavit has been made, as provided in the last section, the prosecuting attorney 2. shall approve the same by indorsement, using the words `approved by me' and sign the same as such prosecuting attorney." Burns' 1942 Replacement, § 9-909.
In this case the prosecuting attorney followed the statute. That was sufficient. Judicial notice will be taken of his particular judicial circuit.
3. This precise question was presented in the case of Porter v. State (1910), 173 Ind. 694, 91 N.E. 340, and decided 3. by this court adversely to appellant's contention.
Judgment affirmed.
Bobbitt, Draper, Emmert, and Gilkison, JJ., concur.
NOTE. — Reported in 120 N.E.2d 182.