Busch v. State
| Decision Date | 06 January 1926 |
| Docket Number | No. 24487.,24487. |
| Citation | 197 Ind. 173,150 N.E. 58 |
| Parties | BUSCH v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Delaware County; Clarence W. Dearth, Judge.
Bernard D. Busch was convicted of possessing and manufacturing liquor and possessing a still, and he appeals. Reversed.
F. Clayton Mansfield, of Muncie, for appellant.
U. S. Lesh, Atty. Gen., and O. S. Boling, of Indianapolis, for the State.
This case originated in the Muncie city court, and on appeal to the Delaware circuit court an amended affidavit in four counts was filed, stating that appellant, on February 19, 1923, at and in the county of Delaware, state of Indiana, (1) “did then and there unlawfully keep and have in his possession intoxicating liquor with intent to sell *** and otherwise dispose of the same to divers persons,” etc.; (2) “did then and there unlawfully make and manufacture intoxicating liquor”; (3) “did then and there unlawfully have in his possession a still *** for the manufacture of intoxicating liquor, intended for use in violation of the laws of the state of Indiana”; and (4) “did then and there unlawfully maintain a common nuisance, by then and there keeping a house and place where intoxicating liquors were then and there manufactured, bartered, and given away, and kept for sale and barter, in violation,” etc.
The first three counts are predicated upon section 4, Acts 1917, p. 15, as amended section 1, Acts 1921, p. 736 (section 8356d, Burns' Supp. 1921). The fourth count is based on section 20, Acts 1917, p. 15 (section 8356t, Burns' Supp. 1921). A motion to quash each of these counts separately and severally, for want of facts sufficient to state a public offense, or an offense with sufficient certainty, was overruled. A trial before a jury resulted in a verdict of guilty as charged in the affidavit. Judgment in accordance with the verdict. The overruling of his motion for a new trial and his motion in arrest are separately assigned as errors.
Appellant insists that each count of the affidavit was insufficient to withstand his motion to quash, in that the first count failed to describe with sufficient certainty the kind, character, or quantity of intoxicating liquor. The same objections are urged to the second count, with the addition that the affidavit “does not negative the statute under which it was drawn,” that the third count failed to allege that the defendant intended to or had used the still in violation of law, and that the fourth count was bad for uncertainty in failing to allege that the defendant manufactured or intended to manufacture intoxicating liquor, or that he intended to barter or give it away, and for failure to state that appellant was either the owner or in control of the house where the liquor was manufactured.
[1] The statute upon which the several counts of the affidavit were based defines the several offenses charged, and fixed the punishment therefor. Under this statute it is only necessary to follow its language in charging the offense, which was done in the amended affidavit. Simpson v. State (Ind. Sup.) 149 N. E. 53.
[2] As to the effect of failing to negative the exception noted against the second count, we may say that the statute (section 1, supra) declares and defines the offense charged apart from the phrase, “except as in this act provided.” In charging a violation of a statute thus explicit, it is not incumbent upon the state to allege or prove anything regarding the exception. If a defendant is within the exception, that is a matter for him to show by affirmative proof. Jenkins v. State, 188 Ind. 510, 124 N. E. 748;Hewitt v. State, 121 Ind. 245, 23 N. E. 83;Volderauer v. State (Ind. Sup.) 143 N. E. 674;Stapert v. State (Ind. Sup.) 143 N. E. 587.
The court's refusal to give certain instructions tendered by appellant, and the giving of certain instructions by the court upon its own motion, are made causes for a new trial. We have carefully examined these instructions, and, as we understand them, they present in another form the same questions that were urged in support of the motion to quash. The court's action in refusing and in giving the instructions must be approved.
[3] It appears from the evidence that on February 20, 1923, and affidavit in four counts was filed in the city court of Muncie, and that this affidavit was amended after the case reached the circuit court on appeal. At the trial in the circuit court, appellant did not testify, but the state, as a part of its original case, called a police officer as a witness, who, over the objection of appellant, was permitted to testify concerning certain statements made by the defendant at the hearing before...
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