Boyd v. State
| Decision Date | 09 April 1924 |
| Docket Number | 24,326 |
| Citation | 143 N.E. 355,195 Ind. 213 |
| Parties | Boyd v. State of Indiana |
| Court | Indiana Supreme Court |
Rehearing Denied October 9, 1924.
1. INDICTMENT.---Motion to Quash.---Defects not Pointed out.---A motion to quash an affidavit which does not point out any defects in any count, is properly overruled. p. 214.
2. INTOXICATING LIQUOR.---Presumption from Possession.---The fact that defendant had more than a gallon of whisky in his possession is sufficient to support an inference that he was keeping it with intent to sell, under 28, 35 Acts 1917 p. 31 8356b1, 8356i1 Burns' Supp. 1921, in the absence of any evidence disproving such intent. p. 215.
3. INTOXICATING LIQUOR.---Second Offense.---Former Jeopardy.---A defense of former jeopardy cannot be established upon testimony that at the time of a previous search of defendant's house resulting in arrest and conviction there were a still and some whisky in the house which the officers did not find. p. 215.
4. INTOXICATING LIQUOR.---Second Offense.---Identity of Offenses.---The offense of having possession of two stills and a quantity of whisky with intent to sell the whisky in August, was not the same offense as having possession of a quantity of whisky with like intent, the following October although it be part of the same whisky, and conviction and punishment in August does not render the offender immune from punishment in October. p. 215.
5. CRIMINAL LAW.---Search.---Correct Description of Premises.---Weight of Evidence.---On conflicting testimony as to whether defendant, whose house was searched, lived at one number or another, the court will not weigh the evidence as to the correct number of the house. p. 216.
6. SEARCHES AND SEIZURES.---Name of Person Whose Premises Are Searched.---One who knows that the law is being violated in a certain house and does not know the name of the occupant, is not required to wait until he can find out his name before causing a warrant to issue. p. 216.
7. SEARCHES AND SEIZURES.---Description of House.---Number Sufficient.---Describing a place in a search warrant, as a residence bearing a certain number on a designated street in a city, county and state, sufficiently meets the requirement of a "particular description," even though it be stated that the name of the owner is unknown. p. 216.
From Marion Criminal Court (54,086); James A. Collins, Judge.
Richard Boyd was convicted of keeping intoxicating liquor with intent to sell, and he appeals.
Affirmed.
W. E. Henderson, for appellant.
U. S. Lesh, Attorney-General, and Mrs. Edward Franklin White, Deputy Attorney-General, for the State.
OPINION
There were nine counts of the affidavit on which appellant was tried, including two each of the counts numbered two, three and four. Appellant filed a motion to quash the affidavit as a whole, but his motion did not point out any defect in any count, and there was no error in overruling it. It does not appear that a change of venue was asked for or granted, but after said motion to quash had been overruled by a special judge, defendant waived arraignment, evidence was heard, appellant was found guilty, and judgment was rendered. Afterward a motion for a new trial was filed when the regular judge was presiding and was overruled by him. But it does not appear that appellant in any manner objected to these different judges acting in the case, and the record contains nothing whatever indicating that there was anything irregular in the special judge sitting in the absence of the regular judge, and the regular judge afterward resuming his place.
Appellant was found "guilty by the 2nd count of the affidavit." Each count bearing that number charged (among other things) that on October 25, 1922, appellant kept intoxicating liquor with intent to sell, barter, give away and otherwise dispose of it in violation of law. Witnesses testified that on that date he had in his possession in a house at Indianapolis which he was then occupying a gallon and a half of whisky, which he testified had been made by him, and that he also had a ten gallon still, a coil, an oil stove, a hundred gallons of mash, and some jars, concealed up under the roof in an attic over his kitchen, which was reached by going through a hole in the rear porch. In his testimony ...
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