Campbell v. State

Decision Date17 December 1925
Docket NumberNo. 24748.,24748.
Citation149 N.E. 903,197 Ind. 112
PartiesCAMPBELL v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Warrick County; C. J. Lindsey, Judge.

Claude Campbell was convicted of selling intoxicating liquor and of maintaining a common nuisance, and appeals. Reversed, with directions.Ora A. Davis, of Indianapolis, for appellant.

U. S. Lesh, Atty. Gen., for the State.

GEMMILL, J.

Claude Campbell, appellant herein, and another were jointly tried in the Warrick circuit court by jury upon an affidavit containing two counts. Count 1 charged the selling of intoxicating liquor to a person therein named, and count 3 charged the maintaining of a common nuisance. The first charge was based on section 1, chapter 23, Acts of 1923, and the second on section 20, chapter 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 verdicts. 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 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.

[1][2][3] 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 nollied. It is not necessary to consider the motion to quash as to said second count, as appellant could not have been injured by any ruling thereon. Different crimes of the same character, growing out of the same transaction, may be charged in separate counts of the same affidavit. Glover v. State (1887) 109 Ind. 391, 10 N. E. 282;Rokvic v. State (1924) 194 Ind. 450, 143 N. E. 357; Ewbank's Indiana Criminal Law, §§ 265, 266. The crimes charged in the two counts, the selling of intoxicating liquor and the maintaining of a common nuisance, a place where intoxicating liquors were sold and where persons were permitted to resort for drinking intoxicating liquors as a beverage, were alleged to have been committed on the same day, are of the same character, and could result from the same acts. In Glover v. State, supra, it was held that, when, from an inspection of the indictment, it is not certain that different and distinct felonies, which cannot be joined, are charged in the different counts, a motion to quash, on account of duplicity, should be overruled; and in Rokvic v. State, supra, it is said that, until it affirmatively appears that offenses of a different character or relating to different transactions have been improperly joined, the action of the court with reference thereto is discretionary. The amended affidavit upon which the appellant was tried stated the offenses with sufficient certainty, and same was not bad for duplicity. The motion to quash was properly overruled. It follows that the court did not err in overruling the motion to requirethe state to separate the third count of the amended affidavit into a separate and distinct charge and docket same separately, as the causes in count 1 and count 3 were not dissimilar and were not improperly joined.

[4][5][6] In the motion for a new trial, twelve causes were assigned. The first is that the court erred in refusing to require the state to elect before the beginning of the evidence on which count of the amended affidavit it would put the defendant on trial. The power of compelling the prosecuting attorney to elect upon which count he will proceed is discretionary, and will not be disturbed, unless there is abuse of discretion. Glover v. State, supra; McCollough v. State (1892) 132 Ind. 427, 31 N. E. 1116;Knox v. State (1905) 164 Ind. 226, 73 N. E. 255, 108 Am. St. Rep. 291, 3 Ann. Cas. 539; Rokvic v. State, supra. In overruling this motion, the discretion of the court was not abused, and error was not committed by said ruling. Also, it was not error to refuse to require the state to elect, at the close of the evidence, on which count of the amended affidavit it would ask for a conviction. The evidence given on the trial by the person named in the first count of the amended affidavit, as the one to whom intoxicating liquor had been sold or furnished, was such that, if believed, it could be claimed that the offenses charged in count 1 and count 3 were the result of the same transaction. It is true that additional evidence, to which no objection was made, was introduced as to other sales of intoxicating liquor at the said place named in count 3, but this fact would not make such election by the state necessary.

[7][8][9] It is urged by appellant that the court erred in giving on its own motion instructions Nos. 5, 6, 7, 8, 12, and 15. Instruction No. 5 is as follows:

“The material allegations of the charge in the first count of the affidavit herein are that the defendants, or one of the defendants, did on the 20th day of May, 1923, at Warrick county, Ind., unlawfully possess, sell, barter, exchange, give away, and furnish to one L. Green Lutrel intoxicating liquors, contrary to the forms of the statutes of the state, and I instruct you that, if the state has proven beyond a reasonable doubt that the defendants or either of the defendants did, as charged in said affidavit, at the county of Warrick and state of Indiana, either sell, barter, exchange, or give away to the said L. Green Lutrel intoxicating liquors, contrary to the laws of the state, then you should find the defendant guilty that the evidence shows to have violated the statute, and assess his punishment accordingly.”

It was not one of the material allegations of count 1 of the amended affidavit that the defendant did unlawfully possess intoxicating liquors, and the court was mistaken in so informing the jury. The latter part of the instruction is plain that the appellant should be found guilty if the state had proven beyond a reasonable doubt that he, as charged in the affidavit, had sold, bartered, exchanged, or given away intoxicating liquors to the party named. In many cases in this jurisdiction it has been held that an instruction is to be construed as an entirety, and is not to be judged by detached clauses or sentences. In instruction No. 1 of the court's instructions count 1 is set out in full. Part of the verdict on count 1 is as follows:

We, the jury, find the defendant Claude Campbell guilty as in the first count of the affidavit.”

In 1 Randall's Instructions to Juries, § 134, it is stated:

“A violation of the rule that the instructions must not be broader than the indictment or information will not cause a reversal, where it appears from the record that the jury were not misled to the prejudice of the defendant, as where the added words only impose a greater burden upon the state than it is required to sustain.”

Before a court will declare an erroneous instruction to be reversible error, it must be satisfied that the alleged erroneous language, when considered as a part of the entire charge, is harmful to the appellant. Eacock v. State (1907) 169 Ind. 488, 82 N. E. 1039;Weigand v. State (1912) 178 Ind. 623, 99 N. E. 999;Hiatt v. State (1920) 189 Ind. 524, 127 N. E. 277;Bredenderf v. State (1923) 193 Ind. 675, 141 N. E. 610. Considering the objectionable part of the instruction in connection with the latter part, we believe the jury could not have been misled thereby to the injury of the appellant.

[10] Appellant objects to instruction No. 6, saying that it is a mandatory instruction telling the jury to find the defendant guilty of maintaining a common nuisance, if it finds certain facts to exist beyond a reasonable doubt, but ignores the material allegations of time and venue in the third count of the amended affidavit. An instruction need not specify the date of the offense when the allegations and the proof show...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT