Bryant v. State, 25514.

Decision Date30 June 1933
Docket NumberNo. 25514.,25514.
Citation186 N.E. 322,205 Ind. 372
CourtIndiana Supreme Court


Appeal from Clay Circuit Court; Thos. W. Hutchinson, Judge.

Chester D. Bryant was convicted of unlawfully transporting intoxicating liquor in an automobile, and he appeals.

Reversed, with instructions.Harvey Fisher, of Brazil, Edw. H. Knight, of Indianapolis, and A. C. Miller, of Brazil, for appellant.

Arthur Gilliom, Atty. Gen., and Bernard A. Keltner, Deputy Atty. Gen., for the State.


The appellant was convicted of unlawfully transporting intoxicating liquor in an automobile. He assigns as error the overruling of his motion for a new trial.

The court permitted the first witness for the state, a police officer, to testify, in answer to a direct question, that he had been informed before making the arrest that the defendant was a bootlegger, delivering and taking orders for bonded whisky, and that he would find him in a Willys-Knight coupé, and two girls riding with him. The appellant made timely and proper objection, stating in the objection that the legality of the arrest was not questioned. The court, in overruling the objection, said that the evidence was admitted to show that the officer had reasonable information on which to base the arrest. There was no legal evidence that the defendant was engaged in bootlegging or taking orders for whisky. Coming from a peace officer, this testimony, no doubt, made an impression upon the jury. It was hearsay and entirely incompetent, and we cannot say that it did not prejudice the substantial rights of the defendant.

One A. D. Spears and Guy Alden were called as reputation witnesses for the defendant. It appears from the testimony that the defendant had lived for a considerable time in Clinton, Ind. That he went to Florida and since returning was living in Parke county. The witness Spears testified that he was acquainted with people generally in and about Clinton. He was asked the following question: “Now I will ask you to state whether or not you are acquainted with his reputation in the Town of Clinton where he had been residing, his general reputation, prior to the 7th day of May, 1927, as a law-abiding citizen?” The question obviously referred to the time when the defendant was a resident of Clinton. The witness answered that he was acquainted with defendant's reputation and that it was good. After some cross-examination the testimony was stricken out, evidently upon the theory that the witness was not acquainted with the reputation of the defendant in Parke county where he was living at the time of the trial.

A defendant, in proving his good reputation, is not limited to the place of his residence at the time of the trial. He has the right to show what his reputation was at prior times, while living in other places. It was error to strike out the testimony.

Guy Alden testified that the defendant lived in Annapolis, in Parke county, and that the witness was acquainted in that neighborhood. That he was acquainted with the general reputation of the defendant in the neighborhood and that it was good. Upon cross-examination he testified that he was only in the neighborhood two or three times a week, that he did not know whether the defendant was keeping house, but he did know that the defendant was staying with his wife's folks in Annapolis. After this cross-examination, the testimony was stricken out. This was error. The witness showed an acquaintance with people in the community. The fact that he was only in the community two or three times a week, and that he did not know whether the defendant was keeping house would affect the weight and not the admissibility of the evidence.

The appellant tendered five instructions, all of which were refused and exceptions reserved. These instructions were based upon the theory that the felony described in section 2720, Burns' 1926, declaring against the transportation of intoxicating liquor in a vehicle, necessarily includes the misdemeanor of transporting intoxicating liquor described in section 2717, Burns' 1926. That it was the duty of the court to so instruct the jury, and to instruct them that where an offense charged includes other offenses, the jury may find the defendant not guilty of the offense charged, and guilty of some included offense. That where there is reasonable doubt as to which of two or more of the offenses a defendant is guilty, he must be convicted of the lesser offense only. The instructions were appropriate for this purpose, and were not covered by other instructions, except that in one of the court's instructions the jury was told that where a defendant was charged with a crime consisting of different degrees, they might convict of a lesser degree than the one described in the affidavit. The jury was not told that the misdemeanor statute referred to was included in the charge in the affidavit.

Section 2717 provides that it shall be unlawful for any person to transport any intoxicating liquor except as authorized in the act. Section 2720 provides that any person who shall transport intoxicating liquor in a vehicle shall be guilty of a felony unless the transportation is for purposes and uses that are not unlawful. Transportation in a vehicle for any purpose except as authorized in section 2717 was unlawful.

Section 2313, Burns' 1926, is as follows: “In all other cases, the defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment or affidavit.”

In Haverstick et al. v. State, 196 Ind. 145, 147 N. E. 625, this court had these same statutes under consideration. The appellant complained that the court had not instructed the jury that the misdemeanor was included in the felony, but it appeared that the appellant had not tendered such an instruction, and the court held that in the absence of a proper request for such an instruction, the appellant was not in a position to complain of the omission. After thus deciding the question, the court continued with dictum to the effect that the misdemeanor of transporting intoxicating liquor on foot or on horseback is not a lesser degree of the felony defined by the statute against transporting liquor in a vehicle. This statement would undoubtedly be correct if the misdemeanor statute declared against transporting intoxicating liquor on foot or on horseback, but it does not. It simply declares against transporting (and other trafficking in) intoxicating liquor, while the felony statute declares against transporting intoxicating liquor in a certain manner-in a vehicle.

It has long been the rule in this state that on indictment for a felony the defendant may be convicted of a misdemeanor, the commission of which is necessarily included in the offense charged.

A charge of rape has been held to necessarily include assault and battery with intent to commit rape, and simple assault and battery. A charge of assault and battery with intent to kill has been held to include assault and battery, and a charge of manslaughter to include a charge of assault and battery. Kleopfer v. State, 200 Ind. 287, 163 N. E. 93.

In State v. Elder, 65 Ind. 282, 32 Am. Rep. 69, it is said: “When the facts constitute two or more offences, wherein the...

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    • United States
    • Indiana Supreme Court
    • 27 Enero 1981
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