Budreau v. State

• Decision Date: 20 November 1925
• Docket Number: 24,678
• Parties: Budreau v. State of Indiana
• Court: Indiana Supreme Court

149 N.E. 442

197 Ind. 8

Budreau v. State of Indiana

No. 24,678

Supreme Court of Indiana

November 20, 1925

1. INTOXICATING LIQUORS.---Affidavit charging unlawful transportation of intoxicating liquor in language of the statute held sufficiently definite and certain.---An affidavit charging the unlawful transportation of intoxicating liquor in the language of the statute (Acts 1923 p. 70) was sufficiently definite and certain to state a public offense. p. 12.

2. INTOXICATING LIQUORS.---Word "transport" in the prohibition law not limited to transportation by one for another or for hire.---The word "transport," as used in 4 of the prohibition law of 1917, as amended in 1921 and 1923 (Acts 1921 p. 736, Acts 1923 p. 70) was not limited to a transportation by one for another or to a transportation for hire, but it includes carrying such liquor in one's own conveyance for his own purpose. p. 12.

3. SEARCHES AND SEIZURES.---Officer could arrest one guilty of transporting intoxicating liquor in an automobile, though offense not committed within his view, and could then seize the liquor as incriminating evidence.---An officer had the right to arrest the defendant for transporting intoxicating liquor in an automobile, which constituted a felony under Acts 1923 p. 108, where he had been informed that defendant had recently violated that statute, and could then seize such liquor as incriminating evidence, although he did not charge the defendant with feloniously transporting liquor. p. 13.

4. INTOXICATING LIQUORS.---Evidence held sufficient to sustain conviction for unlawfully transporting liquor.---Evidence held sufficient to sustain conviction for unlawfully transporting intoxicating liquor. p. 15.

5. INTOXICATING LIQUORS.---Verdict finding defendant guilty of unlawfully transporting intoxicating liquor was not contrary to law as against contention that liquor transported was for the personal and "medical" use of defendant.---A verdict finding the defendant guilty of unlawfully transporting intoxicating liquor was not contrary to law on the ground that the liquor was intended for his own personal and "medical" use when he had not consulted a physician in relation to the ail- ment for which he wanted the liquor, did not have a physician's prescription authorizing him to obtain such liquor, and one of two bottles in which he obtained the liquor was nearly empty. p. 15.

From Benton Circuit Court; Burton B. Berry, Judge.

Cales E. Budreau was convicted of unlawfully transporting intoxicating liquor, and he appeals.

Affirmed.

Burke Walker, for appellant.

U. S Lesh, Attorney-General, Arnet B. Cronk and Carl Wilde, for the State.

OPINION

Travis, J.

Appellant was charged in an affidavit with having unlawfully transported intoxicating liquors. Acts 1923 p. 70. A judgment of a fine and imprisonment followed a verdict of guilty. Appellant limits the matter to be considered in this appeal by the statement made in his brief as follows: "The state prosecuted the case upon the theory that any movement or carriage of intoxicating liquors by appellant was an unlawful transportation. Appellant defends upon the theory that the mere carriage by him of a small quantity of intoxicating liquor for his own personal and medical use, was not a violation of the law." Appellant's motion to quash, which challenged the affidavit for the reasons that the facts stated do not constitute a public offense, and the offense is not stated with sufficient certainty, was overruled. Appellant's motion for a new trial for the causes that certain evidence was admitted over his objection for the reason that the liquor in the controversy was found and held by an unlawful search and seizure, for the giving and refusing of certain instructions, and that the verdict was not sustained by sufficient evidence and was contrary to law, was overruled.

According to appellant's testimony in his own behalf upon his direct examination, he made a trip to the city of Lafayette in the forenoon of October 15, and arrived there between half past ten and eleven o'clock in the morning which trip was made for the purpose of getting his shotgun which he had previously left with a gunsmith to be repaired. He ate his dinner at a local restaurant, after which he stopped along the sidewalk near the court-house square, and while there met another man of whom he asked where he might obtain some good whisky. From the information given him by his newly-made acquaintance he went to a certain pool room and there, for $ 10, obtained two bottles of good whisky. He placed the two bottles under his overcoat between the front and rear seats of his automobile, and about half past two o'clock in the afternoon left Lafayette to return home. On his way home he stopped and took a drink of liquor out of one of the bottles and then drove on to Oxford, where he stopped to see a friend who conducted a restaurant. When he entered the restaurant, the only people present were the wife of the proprietor and a man whom he did not know. Upon his inquiry for the wife's husband, she informed him that the husband was upstairs asleep. While she was upstairs waking her husband, the man in the restaurant told appellant that he was dry, and appellant told him that if he desired he could go across the street to his automobile and get a drink. They both went outside the restaurant and there met another man who asked appellant if he had liquor in his car, and he said that he had, and they went across the street to the automobile, after which the one whom they met outside the restaurant took the liquor in charge and placed it in the front seat, and the two men with appellant and another whom they took in, drove to Fowler, the county seat. On cross-examination, appellant testified that he had been having trouble with his heart after two attacks of influenza about two years before, and that he took the drink from the bottle on the way home from Lafayette as a medicine, and that he bought the whisky so that he might have some of it in the evening each day during the time he was husking his corn, and that he was taking it in this manner because of his illness. The man whom appellant saw in the restaurant with the proprietor's wife when he first entered, testified that he was a minister, and, during the absence of the proprietor's wife, appellant said to him that he wanted to take the proprietor to the edge of town and give him a drink, and that, after the proprietor's wife had returned from going upstairs to waken her husband, and while she was again engaged in conversation with appellant, he stepped out to an adjoining store and telephoned to the constable, the man whom appellant met just outside when he and the minister left the restaurant. This witness was looking out the restaurant window when appellant drove up from the east and stopped across the street just before he came to the restaurant. This second man whom appellant met testified that he was a deputy constable and that after the conversation with appellant previous to crossing the street, and after crossing to the automobile, he placed the appellant under arrest, and then saw the neck and part of a bottle which contained a liquid which he thought was whisky protruding from a newspaper, all of which was partially covered by an overcoat; that after taking out the partly empty bottle, he lifted the overcoat and found the other full bottle; and then asked the minister to drive the automobile to Fowler, the county seat; and that the appellant was...