Budreau v. State, 24678.
| Decision Date | 20 November 1925 |
| Docket Number | No. 24678.,24678. |
| Parties | BUDREAU v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Benton County; Burton B. Berry, Judge.
Cales E. Budreau was convicted of unlawfully transporting intoxicating liquors, and he appeals. Affirmed.
Burke Walker, of Fowler, for appellant.
U. S. Lesh, Atty. Gen., and Arnet B. Cronk and Carl Wilde, both of Indianapolis, for the State.
Appellant was charged in an affidavit with having unlawfully transported intoxicating liquors. Acts 1923, p. 70, c. 23. 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:
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 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 10 and 11 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 courthouse 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 2 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 bounght 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 intoxicated, so much so that he considered it unsafe to permit him to drive the machine back to Fowler. At Fowler they took appellant before the prosecuting attorney and called the sheriff. Appellant, in the presence of the deputy constable, the sheriff, and prosecutor, admitted that he had transported the liquor, and told where he procured it, and the amount he paid for it.
[1] Concerning the motion to quash, appellant's point that the affidavit is uncertain, for which reason it does not state a public offense, has already been decided in the case of Asher v. State, 194 Ind. 553, 142 N. E. 407, 143 N. E. 513, which holds that an affidavit in the language of the statute is sufficiently definite and certain to state a public...
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