Asher v. State
| Decision Date | 24 April 1924 |
| Docket Number | 24,402 |
| Citation | 143 N.E. 513,194 Ind. 553 |
| Parties | Asher v. State of Indiana |
| Court | Indiana Supreme Court |
Original Opinion of February 6, 1924, Reported at: 194 Ind. 553.
The affidavit in this case charges appellant with unlawfully transporting intoxicating liquor. It is charged in the language of the statute. The statute defines the offense and states specifically what acts shall constitute a violation thereof. The charge that it was done unlawfully precludes the idea that it was done in any lawful manner.
If there are cases in which a person may transport liquor lawfully, as appellant contends, then that would be a matter of defense, which need not be anticipated and negatived in the affidavit. See, State v. Closser (1912), 179 Ind. 230, on page 238, 99 N.E. 1057, and other cases cited in original opinion. See, also, State v. Bridgewater (1908), 171 Ind. 1, 85 N.E. 715.
As to the evidence, we are still of the opinion that from the facts and circumstances proven, the court trying the cause could have found that appellant was unlawfully transporting this liquor, that is, that he was unlawfully taking it from one place to another. If there are exceptions to the statute, which are not contained in the clause of the statute upon which the prosecution is based and appellant was within any of such exceptions, then that was a matter of defense. There was no attempt to show any such fact.
Certain other questions are discussed in appellant's brief on his petition for a rehearing, but as they were not pointed out or discussed in his original brief, they will not be considered now. Supreme and Appellate Court Rule 22; Ewbank's Manual (2d ed.) § 242.
Petition for rehearing overruled
To continue reading
Request your trial