Derry v. State
| Decision Date | 26 October 1932 |
| Docket Number | No. 25288.,25288. |
| Citation | 204 Ind. 21,182 N.E. 701 |
| Parties | DERRY v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Delaware Circuit Court; Fred F. McClellan, Special Judge.
George E. Derry was convicted of driving a motor vehicle on a public highway while under the influence of intoxicating liquor, and he appeals.
Reversed, with instruction.
Templer & Benadum, of Muncie, for appellant.
Arthur L. Gilliom and Harry L. Gause, both of Indianapolis, for the State.
John Seldonridge filed an affidavit in the city court of Muncie, Ind., charging appellant with unlawfully driving an automobile on the public highway of that city, he being then and there “under the influence of intoxicating while so driving.” He was convicted and appealed to the circuit court, wherein Arthur B. Jones filed what was designated as an amended affidavit, to which a motion to quash was sustained. Thereupon, a third affidavit and a new cause of action stated in the language of the statute was filed, charging that appellant “at and in the County of Delaware, State of Indiana, did then and there unlawfully drive and operate a motor vehicle upon a public highway while he *** was then and there under the influence of intoxicating liquor, contrary, etc.” A motion to quash this affidavit was overruled. Appellant was tried before a jury which returned a verdict of guilty as charged, assessing a fine of $500 and imprisonment in the county jail for a period of six months. Appellant's motion for a new trial was overruled and the court rendered judgment on the verdict. Appellant prosecuted this appeal and has assigned errors on the action of the court in overruling his motion to quash and in overruling his motion for a new trial.
[1] Appellant's brief is defective, in that it does not include his motion to quash, but as we are advised from his points and authorities, he thereby sought to attack the constitutionality of section 9, Acts 1925, pp. 144, 147, c. 48, section 2725, Burns' 1926, in that the title of the act was limited to the subject of intoxicating liquor and did not embrace driving a motor vehicle while under the influence of intoxicating liquor. This section was repealed. Newbauer v. State, 200 Ind. 118, 161 N. E. 826. The record affirmatively shows that the third affidavit and the trial proceeded upon the theory of an alleged violation of section 40. chap. 213, Acts 1925, section 10141, Burns' 1926, which, so far as the same is at present material, reads as follows: “Any person who shall drive or operate a motor vehicle or motor bicycle on any highway of this state while under the influence of intoxicating liquor or narcotic drugs, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall, for a first offense, be punished by a fine of not to exceed five hundred dollars, to which may be added imprisonment for a term of not less than ten days and not more than six months.” Neither this section of the statute nor the act of which it is a part is questioned for lack of a proper title or otherwise.
[2] In support of the motion for a new trial, the claim is made that the clause, “if, then, you are convinced by the evidence of whatever class it may be,” included in instruction No. 8, permitted the jury to consider any class of evidence, good or bad, and for that reason the instruction was erroneous.
The gist of the offense charged was driving a motor vehicle while under the influence of intoxicating liquor. There was direct evidence by Muncie police officers that appellant, accompanied by another person, was driving or operating a Hudson automobile on the city streets of Muncie; that he was driving slowly, but not always straightway; that prior to his arrest, on leaving his curb parking position, he hit another car, doing no damage. Later, his car and one driven by a taxi driver collided, with no damage to either car. Both the taxi driver and appellant stopped their cars immediately, and the police officers, who say they had been following appellant in an automobile, drove up and stopped. The taxi...
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White v. State
...evidence damaging to the appellant.' 230 Ind. at 240, 102 N.E.2d at 201. (Our emphasis) Quoting from the earlier case of Derry v. State (1932), 204 Ind. 21, 182 N.E. 701, we '* * * 'The purpose of their exhibition before the jury is evident. No one, not even the state, will doubt their prej......
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Bayer v. State
...(1951), 230 Ind. 236, 241, 102 N.E.2d 199) or that 'The purpose of their exhibition before the jury is evident,' (Derry v. State (1932), 204 Ind. 21, 25, 182 N.E. 701). The court also distinguished Duke v. State (1968), 249 Ind. 466, 233 N.E.2d 159 on the grounds that in Duke '. . ., there ......
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Stearsman v. State, 29373
...support this contention appellants rely upon Rohlfing v. State, 1952, 230 Ind. 236, 102 N.E.2d 199, 102 N.E.2d 763, and Derry v. State, 1932, 204 Ind. 21, 182 N.E. 701. In the Rohlfing case a motion to suppress the articles which were displayed at the trial had been sustained, notwithstandi......
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Rohlfing v. State, 28806
...and referring to articles which are not and could not be introduced in evidence was noticed by this court in Derry v. State, 1932, 204 Ind. 21, 182 N.E. 701, 703. In that case the defendant was charged with driving a motor vehicle while under the influence of intoxicating liquor. During the......