Hardebeck v. State

Davison, J. The information in this case charges that, on or about the 26th of January, 1857, Bernard Hardebeck, Gerard Rhule, Gregory Starbuck, Casper Suhre, Matthias Wortz, Conrad Ditchler, Francis Reidleman and John Suhre, in a riotous, tumultuous, violent and unlawful manner, entered the dwelling house of Peter French, and then and there destroyed his property, &c. The defendants, sever- • ally, moved to quash the information; but their motions were overruled, and thereupon the Court, at their instance, allowed them separate trials. Hardebeck, being arraigned, &c., pleaded not guilty. There was a verdict for the state, upon which the Court, having refused a new trial, rendered judgment. The information is said to be defective, because it does not allege the offense to have been committed on a day certain. Its language is, “on or about the 26th of January, 1857.” Hampton v. The State, 8 Ind. R. 336, is precisely [460] in point. There the indictment charged that the offense was committed on or about the 30th day of December. Held, that that charge did not render the indictment invalid; that the words or about were immaterial and mere surplusage. J. Gavin and O. B. Hord, for the appellant. J. S. Scobey and W. Cumback for the state. The Court, upon the plaintiff’s motion, charged the jury as follows: “ If you find that Berna/rd Ha/rdebeck and more than one other person entered the house of Peter Krench, the prosecuting witness, without his consent, in a violent manner, and made a great noise in the house, you must find the defendant guilty.” This instruction seems to be erroneous. The information assumes to name all the persons engaged in the riot, and unless two or more of the persons thus named acted jointly with the defendant in entering the house, &c., he could not be guilty. But under the instruction, the jury were authorized to convict him, though the persons with whom he acted were not charged in the information. .The charge may have misled the jury. Per Curiam. — The judgment is reversed. Cause remanded, &e.