Burnett v. State
| Decision Date | 14 May 1929 |
| Docket Number | No. 25231.,25231. |
| Parties | BURNETT v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Sullivan Circuit Court; Charles D. Hunt, Special Judge.
Walter Burnett was convicted of transporting intoxicating liquor, and he appeals. Reversed and remanded, with directions.
Instruction No. 1 given by the court on its own motion was as follows:
“This is a prosecution by way of affidavit brought by the State of Indiana against the defendant, Walter Burnett, charging him with the violation of a statute of Indiana defining the crime of unlawfully transporting intoxicating liquor.”
Martin L. Pigg, of Sullivan, and Earl Mann, of Terre Haute, for appellant.
Arthur L. Gilliom, Atty. Gen., and Edward J. Lennon, Jr., Deputy Atty. Gen., for the State.
The appellant was prosecuted for transporting intoxicating liquor in an automobile. The affidavit was predicated on section 7, ch. 48, Acts 1925; section 2720, Burns' 1926. He was found guilty by a jury, and judgment was rendered upon the verdict. He has appealed, assigning as errors that the court erred in overruling his motion to quash the affidavit and in overruling his motion for a new trial.
[1][2][3] The affidavit which was designated as “Affidavit for Transporting Intoxicating Liquor,” omitting the formal parts is as follows: “Newman Guy being duly sworn upon his oath, says that one Walter Burnett, late of said county, on the 31 day of December, A. D. 1925 in the said County of Sullivan, and State of Indiana, did then and there unlawfully and feloniously have in his possession and under his control five pints of intoxicating liquor, to–wit, red mule whiskey for the purpose of transporting and did then and there transport said liquor in a certain automobile, to–wit, Essex Sedan, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Indiana.” Part of said section 2720, Burns' 1926, reads thus:
It is claimed by appellant that the affidavit should have been quashed, for the reason that it did not charge that the appellant had unlawfully transported intoxicating liquor. In support of his contention, he relies upon the case of Batts v. State (1924) 194 Ind. 609, 144 N. E. 23, in which this court held: In an affidavit charging the transportation of intoxicating liquor under the act of February 26, 1923 (Acts 1923, p. 70, c. 23), it is necessary to characterize the act as unlawful. In Stropes v. State (1889) 120 Ind. 562, 22 N. E. 773, it was decided that, where an indictment in the language of the statute (Acts 1883, p. 106), making it a felony for the county officers therein named to fail to pay over to their successors on demand all moneys remaining in their hands, charges a county treasurer with having failed to pay to his successor the funds remaining in his hands, without an allegation that such failure was either felonious or unlawful, it is defective. In that case, the court said that, where a criminal statute is not to receive a construction as broad as the language used would seem to warrant, but is to be narrowed by construction, contrary to the general rule, an indictment drawn in the language of the statute is not sufficient, and the indictment must be drawn so as to effectuate the intention of the Legislature, by which the statute was framed. The statute upon which this prosecution was based includes the following statement: “That nothing herein contained shall affect the transportation of intoxicating liquor for such purposes or uses as are not unlawful.” It was, doubtless, the intention of the Legislature to make only the unlawful transportation of intoxicating liquor in an automobile or other vehicle a criminal offense.
This court has held as follows: The sufficiency or insufficiency of an indictment depends on whether the facts properly alleged in the indictment can be true, and the defendant yet be innocent of the offense intended to be charged against him; if he can be innocent, the indictment is bad, and if he cannot, the indictment is good. Stribbling v. State (1877) 56 Ind. 79,State v. Davis (1922) 192 Ind. 423, 136 N. E. 843. Applying that principle, it must be held that the affidavit is not sufficient. In a few states, it has been held that the words “contrary to the form of the statute” in an affidavit or indictment are sufficient, without an allegation that the act was unlawfully done; but that rule has not been adopted in this jurisdiction. In Stropes v. State, supra, it appears that the indictment, which was not sufficient, concluded with the words “contrary,” etc. As all crimes in Indiana are statutory, all prosecutions should be under the statute by which the offense is defined. Vinnedge v. State (1906) 167 Ind. 415, 79 N. E. 353. And an indictment concluding “contrary to the form of the statute” indicates that the prosecution is under a statute, and not the common law. Steil v. Territory (1903) 12 Okl. 377, 71 P. 653. If the affidavit had charged that the appellant had feloniously transported intoxicating liquor, it would have been sufficient, but it does not contain that allegation. As the affidavit does not allege that the appellant feloniously or unlawfully transported intoxicating liquor, it was error for the court to overrule his motion to quash.
In the motion for a new trial, 45 causes are given, and they are presented under eight specifications. From the evidence, the following facts appear: The appellant lived in Terre Haute, where he was a constable. It was reported to Newman Guy, sheriff of Sullivan county, that there was a man coming down from Terre Haute bringing liquor to a dance hall at Wilfred, in Sullivan county, who would leave the liquor in his car, would take fellows out of the dance hall, go to the car, get something out and go down in the hollow, and had been doing that several times; and he would park his car near the door of the dance hall, and before parking, he would turn the car around so it would be facing the road. The sheriff received this information from a boy at Wilfred, from the owner of the dance hall, and from a deputy sheriff at Fairbanks. The owner of the dance hall described the man who was bringing liquor there, and said “he was a deputy sheriff out of Terre Haute.” The deputy sheriff at Fairbanks informed the sheriff that Burnett was bringing liquor to the dance hall. The owner of the dance hall on December 31, 1925, went to the jail at Sullivan and informed the sheriff that appellant would be at the dance hall that night, at which time the sheriff was there. Between 7 and 8 o'clock the appellant drove into the park where the dance hall was located, turned the automobile around about fifteen feet from the door and backed it up against the side of the building. After appellant got out of the automobile, the sheriff went up to him and asked him if he had any liquor in the car. The appellant answered, “No,” and said “You are Newman Guy.” The sheriff said “Yes.” Appellant then said, “I am an officer out of Terre Haute.” The sheriff then said, “Well, I have information you are hauling liquor in here and I want to look the car over.” Appellant did not reply, and the sheriff had his deputy to look inside the automobile, and he found therein five...
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