Foreman v. State
| Decision Date | 26 June 1929 |
| Docket Number | 25,014 |
| Citation | 167 N.E. 125,201 Ind. 224 |
| Parties | Foreman v. State of Indiana |
| Court | Indiana Supreme Court |
1. INTOXICATING LIQUORS---Transportation in Automobile---Superfluous Averments in Affidavit.---In a prosecution under the act of 1923 (Acts 1923, ch. 34, p. 108) for transporting intoxicating liquor in an automobile, an averment in the affidavit charging the offense that the automobile was not owned by the defendant and that the owner did not consent to the transportation of liquor therein could be treated as surplusage, because not descriptive of the offense and not material to the jurisdiction, and the same is true of a statement as to the engine number of the machine and the make and style of the car. p. 226.
2. INTOXICATING LIQUORS---Transportation in Automobile---Failure to Prove Superfluous Averments.---In a prosecution for transporting intoxicating liquor in an automobile in violation of Acts 1923, ch. 34, p. 108, the failure to prove an averment in the affidavit charging the offense that the automobile in which the liquor was transported was not owned by the defendant and that the owner did not consent to the transportation of liquor therein, likewise, the failure to prove the engine number of the machine, would not preclude conviction, as such averments were not material to the jurisdiction and did not describe the offense, the gist of which was the transportation of intoxicating liquor in a vehicle. p. 226.
3. CRIMINAL LAW---Proof Necessary---Proof of Immaterial Averments Unnecessary---Variance.---As a general rule, proof in a criminal prosecution is sufficient if the substance of the issue is proved, it being unimportant whether averments as to facts which are not essentially descriptive of the offense or material to the jurisdiction are proved or not and a discrepancy between the allegation and proof of such facts is not a material variance. p. 226.
4. CRIMINAL LAW---Charge of Transporting Intoxicating Liquor---Proof Necessary---Engine Number of Car---Consent of Owner.---In a prosecution for transporting intoxicating liquor in an automobile, it is not necessary to prove allegations in the affidavit as to the engine number of the car in which the liquor was transported and that the use of the vehicle was without the consent of the owner. p. 227.
5. CRIMINAL LAW---Instructions---Must be Brought into Record by Bill of Exceptions.---In a criminal appeal, no question is or can be raised on the giving or refusing of instructions where the instructions have not been brought into the record by a bill of exceptions. p. 227.
6. INTOXICATING LIQUORS---Transporting in Automobile---Evidence Held Sufficient to Sustain Conviction.---Evidence held sufficient to sustain conviction for transporting intoxicating liquor in an automobile in violation of Acts 1923, ch. 34, p. 108. p. 228.
From Jay Circuit Court; Roscoe D. Wheat, Judge.
Fred Foreman was convicted of transporting intoxicating liquor in an automobile, and heappealed.
Affirmed.
Malcolm V. Skinner, Urban Bonifas and Templer & Benadum, for appellant.
Arthur L. Gilliom, Attorney-General, and Frank L. Greenwald, Deputy Attorney-General, for the State.
This prosecution was for a violation of ch. 34 of the acts of 1923, Acts 1923 p. 108. The charging part of the affidavit is as follows:
"George I. Goodrich, being duly sworn upon his oath says that on or about the 15th day of February, 1925, at and in the county of Blackford, State of Indiana, Fred Foreman, did then and there unlawfully and feloniously transport intoxicating liquor in a Ford sedan automobile, engine No. 1777044, when said sedan automobile was not owned by said Fred Foreman, and without the consent of the owner of said Sedan automobile," etc.
In Volderauer v. State (1924), 195 Ind. 415 143 N.E. 674, in construing said act of 1923, the court says ...
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