Barksdale v. State
| Decision Date | 16 December 1919 |
| Docket Number | No. 23570.,23570. |
| Citation | 125 N.E. 515,189 Ind. 170 |
| Parties | BARKSDALE v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Criminal Court, Marion County; James A. Collins, Judge.
James Barksdale was convicted of violations of the prohibition law, and appeals. Affirmed.
R. L. Bailey, of Chicago, Ill., for appellant.
Ele Stansbury, of Indianapolis, and Dale F. Stansbury, of Covington, for the State.
Appellant was prosecuted, tried, and convicted in the criminal court of Marion county on an affidavit charging a violation of certain provisions of what is known as the “Prohibition Law” (Acts 1917, p. 15).
The affidavit was in eight counts. Appellant's motion to quash, addressed to the first count only, was sustained. A trial by the court without a jury resulted in a general finding of guilty, followed by judgment that he pay a fine of $100, and that he be imprisoned in the Marion county jail for 30 days. The overruling of his motion for a new trial is the only error assigned, and in support of which he relies on three causes: First, the finding of the court is not sustained by sufficient evidence; second, the finding of the court is contrary to law; third, action of the court in refusing to permit his counsel to argue the law and facts to the court after the close of the evidence and before the rendition of the judgment.
[1] The first three counts and the next three of the affidavit on which appellant was tried are numbered in duplicate. The first three charge a former conviction of appellant for like offenses committed at an earlier date, while the latter three omit this allegation. Counts of an affidavit should never be numbered in this manner.
[2][3] The counts upon which appellant was tried and found guilty were predicated upon sections 4, 15, 20, 35, Acts 1917, p. 15 (section 8356d, 8356 o, 8356t, 8356i1, Burns Supp. 1918). The punishment provided in these various sections of the act for the offenses therein separately defined are not the same, nor is the count which is based on section 35, supra, good as against a motion to quash, or a motion in arrest of judgment. Ward v. State, No. 23585, 125 N. E. 397, this term. But as neither of these motions were made by appellant nor a motion for a venire de novo, the questions here indicated which would require some attention are not presented. Under this state of the record, a general finding of guilty on an affidavit containing good counts and bad counts, it will be presumed on appeal that the judgment was rendered on the good counts. Parks v. State, 159 Ind. 211, 215, 64 N. E. 862, 59 L. R. A. 190;Stucker v. State, 171 Ind. 441, 443, 84 N. E. 971.
A general finding and a judgment rendered thereon in keeping with the offense defined and penalty prescribed by sections 4 and 20, separately, and the counts of the affidavit based thereon, under the settled rule of the criminal law will not authorize us to hold that such finding is contrary to law, although there may have been other offenses charged calling for a different penalty.
[4] As to the evidence one witness testified on behalf of the state, and appellant was the only witness in his behalf. Aside from those two witnesses there is a stipulation in the record that other witnesses could be called who would corroborate in detail the testimony of each of these witnesses. We have carefully read all of the evidence, and we are convinced that the question of the sufficiency of the evidence to support the finding all depends on the weight to be given it. The question is one for the trial court exclusively. We are satisfied that there is evidence to support the finding, and, this being true, the finding for that reason is not contrary to law.
[5] The third cause for a new trial is based upon a statement, furnished by the shorthand reporter and included in the general bill of exceptions, containing the evidence to the effect that, after the evidence had closed, counsel for the appellant addressed himself to the court, saying:
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