Husbands v. State

Smith, C. J., delivered the opinion of the court. Appellant was convicted in a court of a justice of the peace of the crime of petit larceny, and ivas again convicted on an appeal to the circuit court. When the case reached the circuit court, a motion was made by appellant to quash the affidavit on which he was being tried, for the reason that it was not subscribed and sworn to. The affidavit was regular on its face, with the exception that it was not signed by the affiant. When this motion was submitted to the court, no evidence was introduced [551] relative thereto, and the motion was overruled; the attention of the court seeming to have been simply called to the fact that the affidavit was not signed. The signature of the affiant was unnecessary to the validity of the affidavit, it being only necessary that he should swear to the contents thereof; and this, from the justice’s jurat, he seems to have done. The motion, therefore, was properly overruled. It is true that afterwards, when the case was on trial on the merits, the affiant was introduced as a witness on behalf of the state, and on cross-examination delivered testimony tending to show that he did not swear to the contents of' the affidavit, the necessity of his so doing seeming to have been overlooked by the justice; but this evidence cannot be considered by us in support of appellant’s motion to quash. It should have been introduced when that issue was tried, and had no place in the trial on the merits. There is no merit in any of appellant’s contentions. Affirmed.