Chappelle v. State, No. 24675.

• Docket Nº: No. 24675.
• Citation: 149 N.E. 163, 196 Ind. 640
• Case Date: October 29, 1925
• Court: Supreme Court of Indiana

196 Ind. 640
149 N.E. 163

CHAPPELLE
v.
STATE.

No. 24675.

Supreme Court of Indiana.

Oct. 29, 1925.

Appeal from Criminal Court, Marion County; Jas. M. Collins, Judge.

George Chappelle was convicted of manufacturing intoxicating liquor and maintaining a liquor nuisance, and he appeals. Affirmed.

Geo. G. Rinier and Floyd J. Mattice, both of Indianapolis, for appellant.

U. S. Lesh, Atty. Gen., and Arnet B. Cronk and Carl Wilde, both of Indianapolis, for the State.

EWBANK, J.

Appellant was charged by affidavit with having violated the prohibition law in many different ways, but he was found guilty only as charged in the first and fifth counts of the affidavit, and not guilty as to the other counts. The first count alleged, substantially in the language of section 1, c. 23, p. 70, Acts 1923 (amending section 8356d, Burns' Supp. 1921), that on August 27, 1923, at Marion county, state of Indiana, the defendant did a number of acts forbidden by said section of the statute, one of which was that he “did then and there unlawfully manufacture *** intoxicating liquor,” etc. And the fifth count charged, substantially in the language of section 20, c. 4, p. 25, Acts 1917 (section 8356t, Burns' Supp. 1921), that at said time and place he “did then and there unlawfully maintain and assist in maintaining a common nuisance, to wit, a room, house, building, boat, structure, club, and place where intoxicating liquors were then and there manufactured *** in violation of the law of this state, *** and the said defendant did then and there keep intoxicating liquor in, and

[149 N.E. 164]

use the same in maintaining said place, contrary,” etc.

Overruling the motion for a new trial is the only error properly assigned.

[1] Whatever error (if any) the trial court may have committed in overruling a motion to suppress evidence, and in thereafter admitting such evidence against appellant, should be specified as a cause for a new trial, under the first subdivision of section 585, Burns' 1914 (section 559, R. S. 1881), as being an irregularity in the proceedings by which the complaining party was prevented from having a fair trial, and not as an independent error. Volderauer v. State (Ind. Sup.) 143 N. E. 674. Witnesses testified that in a house occupied by appellant the police officers seized 2 gallons of grain alcohol, 2 quarts of gin, 10 gallons of beer, a pint bottle of coloring matter, 95 empty quart bottles, some new gin bottles, a bottle capper, and a 10-gallon jar with yeast...