Dumas v. State

• Decision Date: 17 December 1925
• Docket Number: No. 24544.,24544.
• Parties: DUMAS v. STATE.
• Court: Indiana Supreme Court

197 Ind. 123

150 N.E. 24

DUMAS

v.STATE.

No. 24544.

Supreme Court of Indiana.

Dec. 17, 1925.

Appeal from Circuit Court, Vigo County; J. P. Jeffries, Judge.

Adonai Dumas was convicted of having possession and control of a still and material for the manufacture of intoxicating liquor, and he appeals. Reversed, with instructions to sustain defendant's motion for new trial.

Randolph H. Mayes and Josiah T. Walker, both of Terre Haute, for appellant.

U. S. Lesh, Atty. Gen., and Owen S. Boling, of Indianapolis, for the State.

MYERS, J.

On March 28, 1923, appellant, with another, was charged by affidavit with having possession and control of a certain manufacturing devise, still and manufacturing material for the manufacture of intoxicating liquor. Counsel for the state seem to be under the impression that the affidavit herein was predicated upon section 1, p. 736, c. 250, Acts 1921, amending section 4 of an act approved February 9, 1917 (Acts 1917, p. 15, c. 4). However, the record before us affirmatively shows that the charge was based upon section 1 of an act approved March 1, 1923 (Acts 1923, p. 107, c. 33). The judgment, in addition to a fine, was that appellant be imprisoned in the Indiana State Prison for a period of not less than one nor more than five years. The errors assigned question the ruling on the motion to quash and the ruling on the motion for a new trial.

The affidavit charges that Adonai Dumas, “late of said county, on or about the 3d day of March, A. D. 1923, at said county and state aforesaid did then and there unlawfully, feloniously did have in their possession and under the control certain manufacturing devise, still,” etc.

It is claimed that the affidavit does not show (1) that the possession or control of the manufacturing device was unlawful and felonious; (2) that the offense attempted to be charged was committed within two years; and (3) that the affidavit was bad for failure to state the offense in plain and concise language.

[1] The inadvertent wording of this affidavit should not go unnoticed, nor should we fail to remind trial courts of the growing inclination of inattention to the structure of indictments or affidavits by those charged with that duty. Our state Constitution, art. 7, § 5, requires this court to give a statement in writing on all questions necessary to be decided. In compliance with this constitutional provision, much has been and will continue to be said of little value to the legal profession generally, unless our trial courts require the facts constituting an offense to be stated as the statute directs. Section 2040, Burns' 1914.

The affidavit in the instant case “did then (March 3, 1923) and there (Vigo county, Ind.) unlawfully, feloniously did have (in the past, when or where not stated) in their possession and under their control,” etc. Treating the word “did” last used in the affidavit as surplusage, as we may do on motion to quash (section 2063, Burns' 1914, cl. 6), and respecting the comma after “unlawfully,” the affidavit would read as if written “did then and there unlawfully have in their possession, did then and there feloniously have in their possession.” Either of these readings, in connection with the other facts stated, was sufficient to charge the offense, and meet the objections urged against the pleading. Simpson v. State (Ind. Sup.) 149 N. E. 53.

[2] Pertaining to the motion for a new trial, the question of the admission of certain evidence, without which there could have been no conviction in this case, was saved by timely objections and exceptions reserved to each of the rulings.

There is no conflict in the evidence relative to the material facts which control the decision of this case. Concerning some minor matters as to what occurred immediately before and at the time appellant was arrested, there is slight conflict. Briefly stated, it appears that on the morning of March 3, 1923, the sheriff of Vigo county, who had in his possession a search warrant issued by the judge of the Vigo circuit court on February 27, 1923, the deputy sheriff and three federal prohibition enforcement officers left Terre Haute in obedience to the command of the before–mentioned warrant to enter the house or premises of one Theopolis Verplaetse, situate upon a certain...