Asher v. State

• Decision Date: 06 February 1924
• Docket Number: No. 24402.,24402.
• Citation: 194 Ind. 553,142 N.E. 407
• Parties: ASHER v. STATE.
• Court: Indiana Supreme Court

194 Ind. 553

142 N.E. 407

ASHER

v.STATE.

No. 24402.^*

Supreme Court of Indiana.

Feb. 6, 1924.

Appeal from Circuit Court, Delaware County; Clearance Dearth, Judge.

Court Asher was convicted of violating the prohibition law, and he appeals.Affirmed.John T. Walterhouse and Thos. V. Miller, both of Muncie, for appellant.

U. S. Lesh, Atty. Gen., Mrs. Ed. Franklin White, Deputy Atty. Gen., and Fred I. King, of Indianapolis, for the State.

GAUSE, J.

Appellant was tried and convicted in the court below upon an affidavit in two counts, the first of which charged that appellant, on or about April 21, 1923, at and in Delaware county, Ind., “did then and there unlawfully transport intoxicating liquor.”The second count charged that appellant at said time “did then and there unlawfully manufacture intoxicating liquor.”There was a general verdict of guilty, without indicating upon which count or counts the verdict rested.The verdict fixed his punishment, and upon the verdict judgment was rendered.

Appellant filed a motion to quash each count of the affidavit, upon the grounds that the facts stated did not constitute a public offense, and that the affidavit did not state the offense with sufficient certainty.His motion was overruled as to each of these two counts.He filed a motion for a new trial, in which he alleged that the verdict was contrary to law, and was not sustained by sufficient evidence.This motion was overruled.The rulings upon the motion to quash and upon the motion for a new trial are assigned as error.

[1]This prosecution was based upon chapter 23 of the Acts of 1923(Acts 1923, p. 70), which provides:

“It shall be unlawful for any person to manufacture, transport, *** sell, barter, exchange, give away, furnish or otherwise dispose of any intoxicating liquor, except as in this act provided,” etc.

It will be observed that each count of the affidavit charges an offense in the language of the statute.

[2] Where a statute defines a crime, and states what acts shall constitute a violation thereof, it is sufficient to charge the offense in the language of the statute.Faulkner v. State(1923, Ind. Sup.)141 N. E. 514;State v. New(1905)165 Ind. 571, 76 N. E. 400;State v. Closser(1912)179 Ind. 230, 99 N. E. 1057.This statute provides that transporting intoxicating liquor shall be a crime, and also that manufacturing intoxicating liquor shall be a crime.The acts which constitute the crime being set out in the statute, it is sufficient to use the language of the statute.

The charge here is not similar to a charge of an unlawful sale, where another person must be included in the transaction, and it is necessary to allege the person to whom the sale was made, in order to identify the transaction.

[3] For one to be guilty of unlawfully transporting intoxicating liquor, it is not necessary for it to be transported from one person to another, but the word “transport” is used in its ordinary sense, and means conveying from one place to another.Cunard S. S. Co. v. Mellon, 162 U. S. 100, 43 Sup. Ct. 504, 67 L. Ed. 894;State v. Pope, 79 S. C. 87, 60 S. E. 234.The first count, it should be borne in mind, is based upon Acts 1923, p. 70, defining a misdemeanor, and not upon Acts 1923, p. 108, defining a felony, where the transportation is required to be in a vehicle, as therein described.

[4][5] It would not be necessary, in the second count, to allege the process he used in manufacturing it, but it was sufficient to allege he committed the acts which the statute sets out as constituting the crime.It was not necessary, in the second count, to negative the exceptions which are contained in other parts of the statute, authorizing the manufacture of pure grain alcohol for certain purposes.Crawford v. State(1900)155 Ind. 692, 57 N. E. 931;Hewitt v. State(1889)121 Ind. 245, 23 N. E. 83.

[6]The appellant claims that there was no evidence to justify a conviction, and that therefore the verdict is contrary to law.The verdict was general, without a finding as to which count it was based upon; so, if there was evidence to sustain the verdict upon either count, the judgment cannot be reversed, even though there was no evidence to sustain one of the counts.There does not appear to be any evidence to sustain the second count, charging appellant with manufacturing intoxicating liquor; so the inquiry then must be directed to the question as to whether there was evidence to sustain the charge of unlawfully transporting intoxicating liquor.

[7] The evidence...