Batts v. State, 24388.

• Decision Date: 03 June 1924
• Docket Number: No. 24388.,24388.
• Parties: BATTS v. STATE.
• Court: Indiana Supreme Court

194 Ind. 609

144 N.E. 23

BATTS

v.STATE.

No. 24388.

Supreme Court of Indiana.

June 3, 1924.

Appeal from Circuit Court, Putnam County; Thomas W. Hutchinson, Judge.

Stella Batts was convicted of unlawfully transporting intoxicating liquor, and appeals. Reversed, with instructions to sustain motion to quash affidavit.

Little & Little, of Indianapolis, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward Franklin White, Deputy Atty. Gen., for the State.

WILLOUGHBY, J.

This was a prosecution charging the appellant with the transportationof intoxicating liquor under the Prohibition Law of 1917, c. 4, p. 15, as amended by Acts of 1921, c. 250, p. 736, and as further amended by Acts of 1923, c. 23, p. 70. That act provides that—

“It shall be unlawful for any person to manufacture, transport, *** any intoxicating liquor, except as in this act provided. ***”

The appellant filed a motion to quash the affidavit for the reason that it did not state “an offense or a violation of the law.” This motion was overruled to which ruling of the court the appellant at the time excepted. The appellant then waived arraignment and pleaded not guilty to the charge against her. The trial was by the court without a jury, and the court found the appellant guilty and fined her in the sum of $100 and sentenced her to the Woman's State Prison for six months. Appellant then filed a motion for a new trial, which was overruled, and to which ruling the appellant excepted. From such judgment the appellant appeals, and assigns as error: (1) The overruling of appellant's motion to quash the affidavit; (2) the overruling of appellant's motion for a new trial.

[1] We will first consider the motion to quash. The state objects to consideration of this motion because the motion is not set out in appellant's brief. This objection is not well taken. In appellant's brief she says that the reason for filing the motion to quash was that the affidavit did not state an “offense or a violation of law.” Section 2065, Burns' 1914, sets out four reasons for which an indictment or affidavit may be quashed. The second of these reasons is that the facts stated in the indictment or affidavit do not constitute a public offense. This is substantially the same as the reason given in appellant's motion to quash, and is sufficient.

[2] The appellant says that the affidavit failed to charge the appellant with having “unlawfully” committed the offense charged. An examination of the statute discloses that not all transportation of intoxicating liquor is unlawful. The statute says such transportations shall be unlawful except as in this act provided. It is not necessary to negative exceptions contained in the statute in the affidavit charging the offense, but it is necessary to characterize the act alleged to be a crime as “unlawful.” It was error for the court to overrule appellant's motion to quash. See Bishop, Crim. Procedure, § 503; State v. Maddox, 85 Ind. 585;Sovine v. State, 85 Ind. 576;Scudder v. State, 62 Ind. 13;Stropes v. State, 120 Ind. 562, 22 N. E. 773;State v. Closser, 179 Ind. 230, 99 N. E. 1057;Asher v State (Ind. Sup.) 143 N. E. 513 (overruling petition for rehearing).

[3] Appellant claims that it was error to overule her motion for a new trial because the finding of the court was not sustained by sufficient evidence and was contrary to law. It is not necessary to consider these questions because the judgment must be reversed for error of the court in refusing to sustain the motion to quash the affidavit, but, in view of the fact that the cause may be tried again upon an amended affidavit, it would be well to consider the evidence upon which the court made its finding.

[4] There is evidence to the effect that on March 1, 1923, the sheriff of Putnam county left Greencastle about 1:30 p. m. with five deputies, and drove in an automobile out on the old Rockville road or Ocean to Ocean highway. Two of these men were armed with rifles and the others had revolvers. The sheriff and two of his men went to the top of the big hill east of Walnut bridge, and the other two stopped down along the roadside by a barn. The sheriff had a signal up, a red flag; the sheriff said the red flag was a signal, and that “when you want to stop anybody it is better to give them a signal than to try to stop them.” The sheriff said he had no knowledge of any particular violations of the law, but searched machines passing along the highway, but did not find any liquor. When this appellant and her husband were seen coming the sheriff said he had no suspicion that anything was wrong with them, but he and his deputies walked out in the road and were standing in the middle of the road. One deputy had a rifle. When the appellant's husband saw the red flag and the men step out into the middle of the road, one armed with a rifle and the others with revolvers, he turned around and started the other way, going as fast as the car would take them, but the sheriff had placed two men at an old barn at the roadside between Walnut bridge and the top of the hill. One of the men thus stationed at the roadside opened fire on the fleeing car, and was so successful that one front tire and one hind tire were punctured with bullets and the radiator disabled, but the car was kept going until they were in front of a dwelling house. thinking, as they said, they would not be shot in front of the house. There is further evidence to the effect that when the sheriff stationed these two deputies at the old barn at the roadside they were instructed by the sheriff to shoot if persons did not stop when they ordered them to do so. One of these men ordered the appellant and her husband, who was driving the car, to stop. The man who did the shooting testified that he had no warrant for the arrest of any one, and did not know that any law had been violated, but he had been told by the sheriff that he had a right to stop any person without a warrant on the highway although the person was not a violator of the law, and, acting on these instructions, he ordered the appellant and her husband to stop, and they not stopping he proceeded to shoot the tires with his rifle; “I fired three shots all told,” he said. When the appellantand her husband turned and went in the other direction from the sheriff and his deputies and the red flag, the sheriff says he got in his car and followed. He said he heard several shots, and had authorized shooting to stop cars when halted, although there was no evidence of guilt except that the party failed to stop when ordered to do so. When they caught up with the appellant and her husband who was examining the tires they say he was on the top of the hill; “the machine was down, the tires down, and the radiator down.”

It appears from the testimony of the sheriff and his deputies, who are not contradicted, that the appellant and her husband were traveling in a Ford coupé along the Ocean to Ocean highway; that the sheriff and his assistants had no search warrant for any one; that they saw no evidence of the violation of any law by the appellant or her husband, and did not suspect them of any when the sheriff and his deputies, all armed, walked out in the middle of the road in front of them; that the appellants' husband, driving the car, then turned around and...