Alderson v. State

Citation168 N.E. 481,201 Ind. 359
Decision Date30 October 1929
Docket NumberNo. 25410.,25410.
PartiesALDERSON v. STATE.
CourtSupreme Court of Indiana

OPINION TEXT STARTS HERE

Appeal from Vanderburgh Circuit Court; R. N. Tracewell, Special Judge.

Joe Alderson was convicted of drawing and threatening to use a deadly weapon, and he appeals. Affirmed.

A. E. Gore, of Evansville, for appellant.

Arthur L. Gilliom, Atty. Gen., and Harry L. Gause, Deputy Atty. Gen., for the State.

MARTIN, J.

Appellant was tried by the court, upon an affidavit which charged that he “did *** unlawfully and willfully draw, and threaten to use while drawn, a certain dangerous and deadly weapon, to wit, a revolver, upon the person of one Jesse D. Landers *** the said Joe Alderson not then and there drawing said weapon in defense to his person and property, and not in defense of those by law entitled to his protection, and the said Joe Alderson did then and there commit said aforesaid act while armed with a revolver, without having a permit to carry said revolver, as required by law. ***”

The court found him guilty as charged in the affidavit (the finding is lengthy and follows all the language of the affidavit) and rendered a judgment reading as follows:

“It is therefore ordered and adjudged by the court that the defendant Joe Alderson is guilty as charged in the affidavit in this cause and that said defendant Joe Alderson, for the offense of drawing said pistol or revolver on the person of the said Jesse D. Landers by him so committed, be and he is hereby fined in the sum of one hundred dollars ($100.00) and that said defendant be, and he is hereby, committed, to the Indiana State Farm for a period, of six (6) months; it is further ordered and adjudged by the court that, at the time of the commission of said crime by the defendant Joe Alderson, he was armed with a pistol or revolver and did not then and there have a permit to carry said revolver as required by law, and it is therefore ordered and adjudged by the court that said defendant Joe Alderson in addition to the penalty heretofore assessed against him for the offense of drawing a deadly weapon upon the person of Jesse D. Landers by him so committed and because said defendant was armed with a pistol or revolver at the time of the commission of said offense and did not then and there have a permit to carry said revolver as required by law, be and he is hereby committed to be imprisoned at the Indiana State Prison for a period of not less than one (1) year and not more than five (5) years. ***”

The alleged errors relied upon for reversal are that: (1) “The court erred in overruling appellant's motion for a new trial,” wherein it is alleged that the evidence is insufficient to sustain the finding and that the finding is contrary to law; (2) “the court erred in overruling appellant's motion to modify the judgment; and (3) “the statute upon which the prosecution is based is unconstitutional and void because of its indefiniteness.”

[1][2] The latter assignment of error is insufficient, since the constitutionality of a statute cannot be questioned on appeal by an independent assignment of error. Pittsburgh, etc., R. Co. v. Town of Wolcott (1904) 162 Ind. 399, 69 N. E. 451. The question of whether an indictment or affidavit states facts constituting a public offense should be presented by a motion to quash or by a motion in arrest. In this manner only can the right of the state be properly protected. Guetling v. State (1927) 199 Ind. 630, 158 N. E. 593.

[3] Appellant's motion to modify the judgment sought to have the court strike therefrom all that portion of the judgment which appears in italics above, and sets forth his reasons as follows: “That said part of the judgment is wholly unauthorized and unconstitutional and the defendant was not on trial for any offense except the offense charged, which was that he was guilty of drawing a dangerous and deadly weapon, and for the further reason that said judgment deprives this defendant of his liberty without due process of law and without this defendant having been charged with any crime, the punishment for which is imprisonment in the Indiana State Prison and without being advised of the nature and the cause of accusation against him.”

The misdemeanor of drawing a deadly weapon is defined by section 448. c. 169, Acts 1905 (section 2539, Burns' 1926), and the felony of committing or attempting to commit a crime when armed with a pistol or revolver is defined by section 2, c. 207, Acts 1925 (section 8013, Burns' 1926). Appellant in his brief erroneously states that the affidavit was in two counts, one charging the misdemeanor and one charging the felony, and his contention in regard to his motion to modify the judgment is on the theory that the affidavit charged only the misdemeanor defined by section 2539, supra. The affidavit, however, as quoted above, is in one count, and charges the felony defined in section 8013, supra. This statute defines a felony and fixes the punishment therefor, fully complying with the requirement of section 2400, Burns' 1926. The word “crime,” as used in section 8013, includes misdemeanors as well as felonies. Guetling v. State, supra. And following the decision and reasoning in that case (at page 633 of 199 Ind., 158 N. E. 594), we hold that the...

To continue reading

Request your trial
7 cases
  • Cox v. State, 26045.
    • United States
    • Supreme Court of Indiana
    • 10 Junio 1932
    ...nor is an assignment of error that “the statute upon which the prosecution is based is unconstitutional and void,” Alderson v. State (1929) 201 Ind. 359, 168 N. E. 481, 482. [5][6] The constitutionality of a statute upon which a prosecution is based will not, according to the weight of auth......
  • Cox v. State
    • United States
    • Supreme Court of Indiana
    • 10 Junio 1932
    ...... that "the indictment does not state a public. offense" is not sufficient, Boos v. State (1914), 181 Ind. 562, 105 N.E. 117, nor is an. assignment of error that "the statute upon which the. prosecution is based is unconstitutional and void". sufficient. Alderson v. State (1929), 201. Ind. 359, 168 N.E. 481. [181 N.E. 470] . .           The. constitutionality of a statute upon which a prosecution is. based will not, according to the weight of authority, be. considered on appeal unless the question [203 Ind. 552] as to. its ......
  • Thurman v. State, 2--473A100
    • United States
    • Court of Appeals of Indiana
    • 27 Noviembre 1974
    ...... These reasons have previously been enunciated by this Court and should not require further elucidation. Alderson v. State (1929), 201 Ind. 359, 168 N.E. 481; Turner v. State (1968), 249 Ind. 533, 233 N.E.2d 473; Knapp v. State (1932), 203 Ind. 610, 181 N.E. 517. The question as to the sufficiency of the indictment is not before us on this appeal.'.         The rule thus stated is applicable, as well, ......
  • Oldham v. State, 28137.
    • United States
    • Supreme Court of Indiana
    • 13 Marzo 1946
    ......I would estimate that death would ensue within the space of five minutes as the most.’        So far as shown by the record the appellant was uninjured.         Of course this court has no authority to weigh the evidence. Alderson v. State, 1929, 201 Ind. 359, 365, 168 N.E. 481;Malich v. State, 1929, 201 Ind. 587, 589, 169 N.E. 531. That was a duty of the trial jury, and it has performed the same and returned its verdict. The right and duty of weighing the evidence was then presented to the trial court by the motion for new ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT