Berry v. State

• Decision Date: 03 June 1925
• Docket Number: No. 24702.,24702.
• Citation: 196 Ind. 258,148 N.E. 143
• Parties: BERRY v. STATE.
• Court: Indiana Supreme Court

196 Ind. 258

148 N.E. 143

BERRY

v.STATE.

No. 24702.

Supreme Court of Indiana.

June 3, 1925.

Appeal from Circuit Court, Delaware County; Clarence W. Dearth, Judge.

Hugh Berry was convicted of transporting intoxicating liquor, and appeals. Affirmed.F. Clayton Mansfield, of Muncie, for appellant.

U. S. Leah, Atty. Gen., for the State.

GEMMILL, J.

Appellant was prosecuted and convicted upon one count of an affidavit in which he was charged with unlawfully transporting intoxicating liquor. The trial was by jury, and judgment was rendered upon its verdict. Count 2 of the affidavit (all others being dismissed) was based on section 1 of chapter 23 of Acts 1923, which makes said offense a misdemeanor. Appellant assigns as errors that the court erred in overruling his motion to quash count 2 of the affidavit, his motion for a new trial, and his motion in arrest of judgment.

In said count of the affidavit, it was stated:

“That Hugh Berry, on or about the 17th day of October, 1923, at and in the county aforesaid, did then and there unlawfully transport intoxicating liquor, contrary to the form of the statute, in such cases made and provided, and against the peace and dignity of the state of Indiana.”

From the evidence it appears as follows: That on October 17, 1923, in the morning, police officers of the city of Muncie, received information which caused them to go to a point on Ohio avenue in said city. On a bank in some bushes on the north side of said avenue, about 10 or 12 feet from the brick pavement, they found a sack in which were 3 one-gallon glass containers and one half-gallon glass container, full of “white mule whisky.” Three officers were concealed in places where same could be watched. Later in the day, appellant, driving a 7-passenger touring car, stopped at the curb near the liquor. He got out of the automobile, went up on the bank, got the sack and contents, and carried same to the automobile and placed it therein. He got in the car and started and, after driving about 15 or 20 feet, was stopped by the officers. Appellant said: “You got me this time, boys; all I want is a square deal.” The appellant and the said liquor found in the automobile were taken to the police station.

[1] The motion to quash the affidavit was on the following grounds: That the facts stated in the count in question did not constitute a public offense, and that said count did not state the offense charged with sufficient certainty. Under the last specification, it was claimed that the place from which and the place to which the defendant transported intoxicating liquor were not alleged, and the kind or name of the carrier from which the defendant received the intoxicating liquor was not alleged.

Said count 2 of the affidavit charges an offense in the language of the statute. The identical question raised by the motion to quash was decided by this court in Asher v. State (Ind. Sup. 1924) 142 N. E. 407, petition for rehearing overruled, 143 N. E. 513. In the Asher Case, this court said:

“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 (Ind. Sup. 1923) 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. *** The acts which constitute the crime being set out in the statute, it is sufficient to use the language of the statute.”

[2][3][4] It is contended by appellant that the affidavit does not state the offense with sufficient certainty when it fails “to charge the place from which to which other place the defendant transported intoxicating liquor.” In Welchek v. State (1923) 93 Tex. Cr. R. 271, 247 S. W. 524, 532, it was held that it was not necessary to allege “from where or to what place” the “transportation” was made. In Maynard v. State (1923) 93 Tex. Cr. R. 580, 249 S. W. 473, it was decided that the indictment for the transportation of liquor in violation of law need not charge that the transportation was from one definite or named place to another. And in Thacker v. Commonwealth (1921) 131 Va. 707, 108 S. E. 559, the court said that an ultimate destination at a fixed point is not necessary to constitute “transportation” within the prohibition statute. In Cole v. Commonwealth (1924) 201 Ky. 543, 257 S. W. 713, an indictment charging that defendant did transport intoxicating liquors, was sufficient without alleging attendant circumstances. No allegation was required in this affidavit as to the carrier or person from which or from whom the defendant received the liquor. The true test of the sufficiency of an indictment is whether the material averments thereof are stated with such certainty as to apprise the defendant of the nature and character of the charge against him. Ridge v. State (1923) 192 Ind. 639, 643, 137 N. E. 758, and cases there cited. The motion to quash count 2 of the affidavit was properly overruled.

In the motion for a new trial, the appellant claimed errors of law in the court giving to the jury certain instructions of its own motion, errors of law in the court refusing to give to the jury certain instructions tendered by the defendant, and that the verdict of the jury was contrary to law.

[5][6][7] Objection is made to instruction No. 1, given to the jury by the court of its own motion. In part of this instruction the court informed the jury as follows:

“The affidavit has been written in five counts or paragraphs, and the court instructs you that the first, third, fourth, and fifth counts or paragraphs of said affidavit have been dismissed, and you are not to consider or read them. You are only to consider and read in this affidavit that you take to your jury room count No. 2 which is known as transportation liquor count.”

Appellant says that this instruction had a tendency to mislead...