Berry v. State, 24729.

• Decision Date: 12 February 1929
• Docket Number: No. 24729.,24729.
• Citation: 202 Ind. 294,165 N.E. 61
• Parties: BERRY v. STATE.
• Court: Indiana Supreme Court

202 Ind. 294

165 N.E. 61

BERRY

v.STATE.

No. 24729.

Supreme Court of Indiana.

Feb. 12, 1929.

Appeal from Delaware Circuit Court; Will White, Judge.

Hugh Berry was convicted of conspiracy to commit a felony, and he appeals. Affirmed.Walterhouse & Miller and F. C. Mansfield, all of Muncie, for appellant.

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

WILLOUGHBY, J.

The appellant was convicted of a conspiracy to commit a felony. He was tried upon an affidavit in the Delaware circuit court before a jury. The jury brought in a verdict as follows: “We, the jury, find the defendant, Hugh Berry, guilty of conspiracy to commit a felony as charged in the affidavit and that said defendant is 29 years of age.” Judgment was rendered upon this verdict, from which judgment this appeal is taken. The charging part of the affidavit is substantially as follows:

That on or about the 1st day of August, 1923, at and in the county of Delaware, state of Indiana, Orville Teague and Hugh Berry did then and there unlawfully, knowingly, and feloniously unite, combine, conspire, confederate, and agree with each other, for the object and purpose and with the unlawful and felonious intent to there and then possess and control a still and distilling apparatus for the manufacture of intoxicating liquor, in violation of the laws of the state of Indiana, and that said Orville Teague and Hugh Berry did then and there, pursuant to said agreement and conspiracy, take possession of a still and distilling apparatus, and take the same to a farm in Perry township, in said county and state, and operate said still and distilling apparatus from on or about the 1st day of August, 1923, until the 9th day of November, 1923, and that the said Orville Teague and Hugh Berry did then and there, during all of said time, use said still and distilling apparatus so possessed and controlled by them in the manufacture of intoxicating liquor, in violation of the laws of the state of Indiana.

On the 26th day of February, 1924, while said affidavit was pending in the Delaware circuit court, the appellant filed his affidavit for change of venue from the regular judge, and said change was granted, and William F. White, a member of the bar of the Delaware circuit court, was appointed special judge. The record shows the following proceedings were had: On the 27th day of February, 1924, the said affidavit for change of judge was submitted to the court and sustained, and the court nominated five members of the Delaware county bar in good standing, to wit, Wm. F. White, Leonidus Guthrie, Everett Warner, George Koons, and Harry Redkey.

Thereafter, on the 1st day of March, 1924, the following further proceedings were had, to wit: Comes now the state of Indiana, by the prosecuting attorney, and also the defendant Hugh Berry, in person and by counsel, and the court now requests that the defendant's counsel strike from the list of persons theretofore named as special judge herein, and defendant's attorney refuses to strike from said list any names, thereupon the court orders the clerk of this court to strike two names from said list, and the defendant Hugh Berry objects, which objections are overruled, and defendant excepts, and the clerk of the court strikes the names of Harry Redkey and Leonidus Guthrie, and thereupon the court orders and directs the prosecuting attorney to strike off two names from said list, and defendant's attorney objects, the court overrules said objection, and defendant excepts, and thereupon said prosecuting attorney strikes from the said list the name of George Koons and the name of Everett Warner, and thereupon defendant objects to the appointment of Wm. F. White as special judge herein, which objections are overruled by the court, and the defendant excepts. Thereupon the court appoints Wm. F. White as special judge to hear, try, and determine this cause, and defendant objects and excepts to said appointment. Thereupon Wm. F. White appears and accepts said appointment, and assumes jurisdiction of this cause as to the defendant Hugh Berry.

On the 9th day of April, 1924, the appellant filed his objection to the serving by Hon. Wm. F. White as special judge in said cause and his motion to remand said cause to the cognizance of the regular judge for the appointment of a special judge in the manner provided by law. The court overruled said objection. The clerk was then ordered to show in the record the oath and appointment of the special judge, which was in writing and then and there filed with said clerk of said court. The defendant then moved the court to quash the affidavit on the grounds: (1) That the facts stated in said affidavit do not constitute a public offense; (2) that the affidavit does not state the offense charged therein with sufficient certainty. Section 2225, cl. 6, and section 2227, Burns' 1926. There is no merit in the objections to the appointment of special Judge Wm. F. White. This appointment was made pursuant to the provisions of the Acts of 1923, p. 312, c. 116, and the record shows that the provisions of the statute were followed.

[1] The appellant claims that the court erred in overruling his motion to quash the affidavit, because the facts stated in the affidavit do not constitute a public offense. The statute under which this affidavit was drawn is section 2882, Burns' 1926. This section provides that any person or persons who shall unite or combine with any other person or persons for the purpose of committing a felony shall be fined not less than $25, nor more than $5,000, and be imprisoned in the state prison not less than 2 years nor more than 14 years. This indictment alleges that Orville Teague and Hugh Berry did then and there unlawfully, knowingly, and feloniously unite, combine, conspire, confederate, and agree with each other, for the object and purpose and with the unlawful and felonious intent to then and there possess and control a still and distilling apparatus for the manufacture of intoxicating liquor, in violation of the laws of the state of Indiana. It then goes on to describe further what acts were committed by the conspirators in pursuance of said conspiracy. This was not necessary, as a conspiracy is complete without committing any of the acts for which the conspiracy was entered into; so the allegations of what was said and done in pursuance of said conspiracy may be treated as surplusage in said affidavit, and did not make it bad. Section 2225, cl. 6, Burns' 1926.

[2] The appellant says the purposed offense is not sufficiently described in the affidavit. The Legislature, in Acts 1923, p. 107, c. 33, declared the possession of a still to be a felony. The act described such felony as follows: “That it shall be unlawful for any person to have in his possession or under his control or to use any still or distilling apparatus for the manufacture of intoxicating liquor, in violation of the laws of this State.” Section 1. The offense...