Opinion of the court by

This appeal is prosecuted by the State, and calls in question the correctness of the ruling of the court below sustaining appellee’s motion to quash.

The affidavit was insufficient, for the reason that it did not state that the appellee was in custody on the charge preferred against him, and that the grand jury of the county was not in session. There were jurisdictional facts, and the affidavit, which was the basis of the prosecution, was fatally defective in omitting to aver the facts which authorized the court to assume and exercise jurisdiction. State v. Burroughs (last term); Lindsey v. State, 72 Ind. 39; Lams v. State, 69 Ind. 130.

Judgment affirmed.