Campbell v. State
| Decision Date | 17 December 1925 |
| Docket Number | 24,748 |
| Citation | 149 N.E. 903,197 Ind. 112 |
| Parties | Campbell v. State of Indiana |
| Court | Indiana Supreme Court |
1. CRIMINAL LAW.---Overruling motion to quash count of affidavit which was nolled before trial not injurious to defendant.---Overruling a motion to quash a count of an affidavit which was nolled before trial could not have injured the defendant. p. 115.
2 INDICTMENT.---Different crimes of the same character, growing out of same transaction, may be charged in separate counts of same affidavit.---Different crimes of the same character growing out of the same transaction, may be charged in separate counts of the same affidavit. p. 115.
3. INDICTMENT.---Crimes of selling intoxicating liquor and maintaining liquor nuisance properly joined in different counts of same affidavit, when alleged to have been committed on same day.---The crimes of selling intoxicating liquor and maintaining a liquor nuisance in violation of Acts 1917 p 15, 4, Acts 1923 p. 70, and Acts 1917 p. 15 20, 8356t Burns' Supp. 1921, were of the same character, and where they were alleged to have been committed on the same day, and therefore could have resulted from the same acts, were properly joined in different counts of the same affidavit. p. 115.
4. CRIMINAL LAW.---Matter of requiring prosecuting attorney to elect on which count of affidavit he will proceed discretionary and ruling of court not disturbed unless there was abuse of discretion.---The matter of requiring the prosecuting attorney to elect on which count of an affidavit he will proceed is discretionary, and the action of the court will not be disturbed unless there was an abuse of discretion. p. 117.
5. CRIMINAL LAW.---Overruling motion to require state to elect on which count of affidavit it will proceed not abuse of discretion when both charges might have arisen from same transaction.---Overruling motion to require the prosecuting attorney to elect on which count of affidavit he would proceed not abuse of court's discretion when one count charged the sale of intoxicating liquor and the other maintaining a liquor nuisance and the charges might have arisen from the same transaction. p. 117.
6. CRIMINAL LAW.---Not error to refuse to require state to elect on which count it would ask conviction when offenses charged might have resulted from same transaction.---It was not error to refuse to require the state to elect, at close of the evidence, on which count it would ask a conviction, where the evidence was such that the offenses charged in the different counts might have resulted from the same transaction. p. 117.
7. CRIMINAL LAW.---Instruction to be construed as entirety and not to be judged by detached clauses or sentences.---An instruction is to be construed as an entirety and is not to be judged by detached clauses or sentences. p. 117.
8. CRIMINAL LAW.---Erroneous instruction not reversible error unless, when taken with entire charge to jury, it was necessarily harmful.---An erroneous instruction will not constitute reversible error unless, when taken with the entire charge to the jury, it was necessarily harmful to the defendant. p. 117.
9. CRIMINAL LAW.---Erroneous portion of instruction held not reversible error when considered with remainder of instruction.---Though statement in an instruction that possession of intoxicating liquor was one of the material allegations of the affidavit was erroneous, it would not constitute reversible error when another part of the instruction correctly stated the material allegations thereof and required the state to prove them beyond reasonable doubt. p. 117.
10. CRIMINAL LAW.---Omission of date of offense from instruction enumerating material allegations of indictment not reversible error when proof shows same day as alleged in indictment.---The omission of the date of the offense from an instruction enumerating the material allegations of the indictment which the state is required to prove is not reversible error when the evidence shows that it occurred on the day alleged in the indictment. p. 119.
11. INTOXICATING LIQUORS.---Instruction held erroneous in directing a finding of guilty of an offense not charged.---An instruction that if the state had proved beyond a reasonable doubt that defendant had kept a room, house, building, structure, etc., where intoxicating liquor was "sold, manufactured, bartered or given away, in violation of law," he should be found guilty, held harmful error where the defendant was not charged with keeping a place where intoxicating liquor was manufactured. p. 119.
12. INTOXICATING LIQUORS.---Instruction directing verdict of guilty of possession of intoxicating liquor in May, 1923, was erroneous.---An instruction directing a finding of guilty if the jury found that defendant was unlawfully in possession of intoxicating liquor on May 20, 1923, was erroneous, as possession of intoxicating liquor was not a criminal offense at that time. p. 120.
13. CRIMINAL LAW.---Instruction as to punishment for second offense is erroneous when no charge of previous conviction.---An instruction in regard to the punishment for a second offense is erroneous when the affidavit or indictment does not charge a former conviction. p. 120.
14. CRIMINAL LAW.---Defendant entitled to have instruction given stating correct penalty for offense charged, though erroneous instruction would not have been cured by it.---Although an instruction stating the correct penalty for the offense charged would not have corrected the error in giving an erroneous instruction on that point, the defendant would be entitled to have such instruction given. p. 120.
15. CRIMINAL LAW.---Alleged erroneous instruction on sufficiency of evidence as to reasonable doubt should be considered with instructions on reasonable doubt, and, if not harmful, not cause for reversal.---An instruction on the sufficiency of evidence to remove reasonable doubt which is claimed to be erroneous should be considered with instructions on reasonable doubt, if any, and if, when so considered, it was not harmful to appellant, it will not be reversible error. p. 121.
16. CRIMINAL LAW.---Refusal to instruct jury not to be swayed by manifestation on part of public against defendant held not reversible error, although there was applause in the courtroom during the argument of prosecuting attorney.---Refusal of the court to give a requested instruction that "juries should not be swayed in the performance of their duty by any manifestation of the public in behalf of or against defendant" would not constitute reversible error, although, during the argument by the prosecuting attorney, there was applause from some of the spectators manifesting approval of the argument and statements made therein, as an appellate tribunal could not know from the record that the manifestation was against the appellant. p. 121.
17. CRIMINAL LAW.---Refusal of requested instruction not ground for reversal unless shown to be harmful error.---The refusal to give a requested instruction is not ground for reversal unless appellant shows that such refusal constituted harmful error. p. 121.
18. CRIMINAL LAW.---Refusal to set aside submission and discharge jury because of applause during argument of prosecutor not reversible error where not shown to have been harmful to defendant.---The court's refusal to set aside the submission of the cause and discharge the jury because of a manifestation of approval, on the part of persons in the court-room, of statements of prosecutor in argument, held not reversible error where appellant did not show that he was harmed by the demonstration. p. 121.
19. CRIMINAL LAW.---Presumption in favor of rightfulness of proceedings in trial court.---There is a general presumption in favor of the rightfulness of what was done in the trial court. p. 121.
20. CRIMINAL LAW.---Appellate tribunal will not weigh the evidence.---In determining whether the verdict was sustained by sufficient evidence, an appellate tribunal will not weigh the evidence. p. 123.
From Warrick Circuit Court; Caleb J. Lindsey, Judge.
Claude Campbell was convicted of selling intoxicating liquor and maintaining a liquor nuisance, and he appeals.
Reversed.
Ora A. Davis, for appellant.
U. S. Lesh, Attorney-General, for the State.
Claude Campbell, appellant herein, and another were jointly tried in the Warrick Circuit Court by jury, upon an affidavit containing two counts. Count one charged the selling of intoxicating liquor to a person therein named and count three charged the maintaining of a common nuisance. The first charge was based on § 1, ch. 23, Acts of 1923; and the second on § 20, ch. 4, Acts of 1917. The jury found the appellant guilty on each count and found his codefendant not guilty. Appellant's motion for a new trial was overruled and judgment of fine and imprisonment rendered against him on the verdict. The alleged errors, upon which he relies for reversal, are: First, that the court erred in overruling appellant's motion to quash the amended affidavit, and each of the first, second and third counts thereof. Second, that the court erred in overruling appellant's motion to require the state to separate the third count of the amended affidavit into a separate and distinct charge and docket same separately. Third, that the court erred in overruling appellant's motion for a new trial.
Appellant's motion to quash the amended affidavit and each of the three counts thereof was overruled. This ruling is assigned as error. Before the trial, the second count of the amended affidavit, on motion of the prosecuting attorney, was nolled. It is not necessary to consider the motion to quash as to said second count, as appellant could not have been injured by any...
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