Carr v. State

• Decision Date: 29 January 1924
• Docket Number: No. 24280.,24280.
• Citation: 194 Ind. 162,142 N.E. 378
• Parties: CARR v. STATE.
• Court: Indiana Supreme Court

194 Ind. 162

142 N.E. 378

CARR

v.STATE.

No. 24280.

Supreme Court of Indiana.

Jan. 29, 1924.

Appeal from Circuit Court, Clay County; Thos. W. Hutchinson, Judge.

Neal Carr was convicted of the unlawful possession of intoxicating liquors, and he appeals. Affirmed.

B. V. Goshorn, of Clay City, and Gerdink & Gerdink, of Terre Haute, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward Franklin White, Deputy Atty. Gen., for the State.

EWBANK, C. J.

The brief for appellant states the nature of the action as follows:

“This was an action by the state of Indiana against the appellant, Neal Carr, wherein the state did upon the 16th day of December, 1922, charge defendant by way of approved affidavit with the unlawful possession of liquors, white mule whisky, with the purpose and intent to barter, sell, exchange, give away, and otherwise dispose of the same, contrary,” etc.

[1][2] The record recites that on the 16th day of December, 1922, appellant was arraigned, and entered a plea of guilty, and was released on bond to appear for sentence on the 28th. But on the 27th day of December, 1922, being the day before the date fixed for imposing sentence, appellant filed a motion for leave to withdraw his plea of guilty. This motion did not aver that appellant was influenced to enter said plea by coercion, or by any mistake of fact, or by erroneous advice of counsel, or that he was deprived of the services of counsel, nor did it even assert that he was not guilty of the offense charged. But it merely stated that the arresting officer had found on his premises some liquor, which was not kept for sale, barter, or to be given away (not denying an intent to exchange or otherwise dispose of even that part of his liquor), and that he had since “discovered that he was not guilty of violating any laws of the state of Indiana as charged, for the reason that said arresting officer did not have a proper and valid search warrant.” A bill of exceptions recites that there was a hearing on the motion, at which certain evidence was introduced, appellant's verified motion being all the evidence introduced in its support; that the court then overruled the motion; and that appellant excepted to the ruling, and he has assigned it as error. Appellant's guilt of the offense charged would not necessarily depend upon whether or not the search warrant under which any particular whisky was seized was lawfully issued. If he kept any at all with the alleged unlawful intent, he thereby violated the law. A motion asking leave to withdraw a plea of guilty is addressed to the sound legal discretion of the trial court, and, in the absence of an affirmative showing that its discretion was abused, overruling such a motion is not error. Monahan v. State, 135 Ind. 216, 218, 34 N. E. 967;Peters v. Koepke, 156 Ind. 35, 39, 40, 59 N. E. 33;Dobosky v. State, 183 Ind. 488, 491, 109 N. E. 742;Atkinson v. State, 190 Ind. 1, 128 N. E. 434;Rowe v. State (Ind. Sup.) 133 N. E. 2.

[3] The showing made in support of appellant's request that the plea of guilty be withdrawn was not such as to make it an abuse of discretion to overrule his motion. After judgment had been rendered on the plea of guilty, appellant filed a motion for a new trial. Overruling this...