Frey v. State

• Decision Date: 08 April 1925
• Docket Number: No. 24654.,24654.
• Citation: 147 N.E. 279,196 Ind. 359
• Parties: FREY v. STATE.
• Court: Indiana Supreme Court

196 Ind. 359

147 N.E. 279

FREY

v.STATE.

No. 24654.

Supreme Court of Indiana.

April 8, 1925.

Appeal from Circuit Court, Vanderburgh County; F. C. Gore, Judge.

Jack Frey was convicted of unlawfully transporting intoxicating liquor in an automobile, and he appeals. Affirmed.Ernest J. Crenshaw, of Evansville, for appellant.

U. S. Lesh, Atty. Gen., for the State.

WILLOUGHBY, J.

The appellant was convicted in the court below upon an affidavit charging him with unlawfully transporting intoxicating liquor in a certain vehicle, to wit, an automobile. The prosecution is founded upon chapter 34 of the Acts of 1923. Acts 1923, p. 108.

The cause was tried by a jury and a verdict returned as follows:

“We, the jury, find the defendant, Jack Frey, guilty as charged in the affidavit, and that he is 40 years of age.”

Upon this verdict the court rendered the following judgment:

“It is considered, ordered, and adjudged by the court that the defendant is guilty of transporting intoxicating liquor as charged in the affidavit. It is by the court therefore ordered that the defendant for the offense by him so committed do make his fine unto the state of Indiana in the penal sum of $100; that he be confined in the Indiana state prison for a period of not less than one year nor more than two years, and that he pay and satisfy the fine and costs herein, or stand committed until said fine and costs are paid or stayed.”

From this judgment appellant appeals and assigns as error: (1) That the court erred in overruling appellant's motion to quash the affidavit. (2) That the court erred in overruling appellant's motion for a venire de novo.

The statute provides:

“That any person who shall transport intoxicating liquor in any wagon, buggy, automobile, water or air craft, or other vehicle *** shall be guilty of a felony and upon conviction shall be imprisoned not less than one year nor more than two years, and fined in a sum not exceeding one thousand dollars. ***” Section 1.

The charging part of the affidavit is as follows:

“That Jack Frey, on or about the 1st day of February, A. D. 1924, at said county as affiant verily believes, did then and there unlawfully and feloniously transport certain intoxicating liquor in a certain vehicle, to wit, an automobile, then and there being. ***”

[1] The motion to quash alleges that: (1) The facts stated in the affidavit do not constitute a public offense; (2) the affidavit does not state the offense with sufficient certainty. The appellant claims that the facts stated in the affidavit do not state a public offense because the act upon which it is based is unconstitutional, for the reason that the subject-matter of the act is not embraced in the title. This question has been fully considered and decided adversely to appellant's claim by this court. Volderauer v. State (Ind. Sup.) 143 N. E. 674.

[2] Appellant also claims that the affidavit is insufficient because it fails to state that at the time of the alleged transportation of such liquor there was in or upon said vehicle or upon some person therein any firearms or guns. This allegation was unnecessary. Volderauer v. State (Ind. Sup.) 143 N. E. 674.

[3] As a further objection to the affidavit the appellant claims that the act upon which it is based is void because it does not prescribe a place of imprisonment. The act describes the offense as a felony, and fixes the punishment at imprisonment for not less than one year and no more than two years, and a fine not to exceed $1,000.

Section 2152, Burns' 1914, provides:

“That whenever any male person thirty years of age or over shall be on trial for any felony except treason or murder, the court or jury trying the cause shall ascertain only his age and whether he is guilty of the offense charged; and if more than one offense be charged it shall be found of which, if any of such offenses he is guilty, and of which, if any, he is not guilty. Instead of pronouncing against such defendant a...