Gavalis v. State
| Decision Date | 20 April 1922 |
| Docket Number | 23,997 |
| Citation | 135 N.E. 147,192 Ind. 42 |
| Parties | Gavalis v. State of Indiana |
| Court | Indiana Supreme Court |
From Lake Criminal Court; Martin J. Smith, Judge.
Prosecution by the State of Indiana against Algerd J. Gavalis. From a judgment of conviction, the defendant appeals.
Affirmed.
A. P Twyman and R. M. Royce, for appellant.
U. S Lesh, Attorney-General, and Mrs. Edward Franklin White, for the state.
Appellant was convicted in the Lake Criminal Court on an indictment charging that on May 31, 1920, he "did then and there unlawfully keep and have in his possession certain intoxicating liquor, with intent then and there to unlawfully sell, barter, exchange and give away" the same in violation of § 4, Acts 1917 p. 15, § 8356d Burns' Supp. 1918, known as the Prohibition Law. On appeal to this court appellant has assigned as error the overruling of his motion to quash the indictment, and the overruling of his motion for a new trial.
Appellant insists that the indictment did not charge a public offense for the reasons: (1) It failed to state the nature of the intoxicating liquor alleged to be kept for unlawful sale; and (2) it failed to state that the intoxicating liquor when sold was to be used as a beverage.
As a part of the Prohibition Law of this state § 2, Acts 1917 p. 15, supra, the general assembly defined the words "intoxicating liquor" as used in that law. This definition is the same as that given to the same words in former liquor laws of this state except it is broadened to cover all drinks, mixtures or preparations containing as much as one-half of one per cent. of alcohol by volume. The question we are now considering is one of pleading. In that respect this court has several times ruled that the words "intoxicating liquor" in an indictment or affidavit sufficiently described the liquor in a liquor violation charge. State v. Hannum (1876), 53 Ind. 335; Hooper v. State (1877), 56 Ind. 153; Wills v. State (1879), 69 Ind. 286; Buell v. State (1880), 72 Ind. 523; Donovan v. State (1908), 170 Ind. 123, 129, 83 N.E. 744.
The charge in the case first cited was an unlawful sale of intoxicating liquor to a minor. The trial court sustained a motion to quash the indictment on the ground of uncertainty. On appeal, the judgment of the trial court was reversed for the reason that the description of the liquor as "intoxicating liquor" was sufficient in all such prosecutions. The court said: On this point we conclude the indictment in the instant case sufficiently characterized the liquor alleged to have been unlawfully kept.
Appellant further insists that the indictment is bad for failing to allege that the intoxicating liquor so kept was to be used as a beverage. If the phrase "to be used as a beverage" was a part of the statute defining the offense, as was the case in the Sunday holiday law, (Acts 1877 p. 92) then appellant's position in this particular would be correct. Dowdell v. State (1877), 58 Ind. 333; Allman v. State (1879), 69 Ind. 387; State v. Buckner (1886), 20 Mo.App. 420. So also would his position be in point in case the definition of the offense included generic terms, or where the statute defines the crime in general terms, the pleader in such cases must resort to particulars. State v. Metsker (1908), 169 Ind. 555, 83 N.E. 241; Terre Haute Brewing Co. v. State (1907), 169 Ind. 242, 82 N.E. 81; State v. Bridgewater (1908), 171 Ind. 1, 85 N.E. 715; Hinshaw v. State (1919), 188 Ind. 147, 122 N.E. 418. This general rule, in criminal pleading, requiring the material facts constituting the offense to be positively alleged, is nothing more or less than a constitutional right of the accused "to demand the nature and cause of the accusation against him, and to have a copy thereof." Art. 1, § 13, Constitution of Indiana.
In the instant case it will be noticed that the phrase "to be used as a beverage" is not a part of the section of the statute defining and creating the offense with which appellant is charged. It appears in the section of the act (§ 2) defining the words "intoxicating liquor." The enactment (Chapter 4, approved February 9, 1917), as appears from its title, pertains only to the absolute prohibition of all liquors containing so much as one-half of one per cent. of alcohol by volume, and the general assembly, by its definition of the words "intoxicating liquor," has incorporated and included all liquors "reasonably likely and intended to be used as a beverage." Hence, to keep intoxicating liquor as here charged must be regarded as clearly meaning liquor of the character reasonably likely or intended to be used as a beverage, for, as we have seen, the general assembly of this state has so expressed in no uncertain language. State v. Carpenter (1863), 20 Ind. 219; Simpson v. State (1861), 17 Ind. 444; Coverdale v. State (1878), 60 Ind. 307; 23 Cyc 228.
Finally, appellant insists that his motion for a new trial should have been sustained on the ground that two of the principal witnesses for the state, subsequent to the trial, made verified confessions to the effect that their testimony given upon the trial was false and because of newly-discovered evidence material to appellant's defense. An examination of the record will disclose that a verdict finding the appellant guilty was returned July 29, 1920. On August 23, 1920, the two parties, father and son, who made the two confession affidavits, were arrested upon a charge of perjury based upon their evidence given at the trial of appellant. They were placed in jail. About an hour thereafter appellant and others appeared at the jail, and after gaining admittance, had an interview with the persons so charged with perjury, and by presenting certain facts to them they were led to believe their testimony given at the trial, to the effect that they were in appellant's place of business and procured alcohol on May 31, 1920, was untrue, and thereupon each made an affidavit that the testimony given by them at the trial was false and untrue. Upon making these affidavits, appellant and others signed a bond for their appearance to answer the perjury charge, and they were released from jail and taken home. On October 15, 1920, one of the parties who had made the so-called confession made a counter-affidavit stating that the evidence given by him at the trial of appellant was true and that the two affidavits of August 23 were made in order that they might be released from jail and upon a promise by appellant and others that they would not prosecute affiant or his son for perjury. The affidavits of August 23 were a part of the motion for a new trial. In opposition to that motion the state submitted to the court the affidavit of October 15, 1920, together with affidavits of other persons to the effect that certain statements in the affidavits of August 23 were false.
The facts thus briefly stated on the point now under consideration were submitted to the trial court and resulted in a ruling adverse to appellant. As we view these various affidavits we cannot say that the trial court reached an erroneous conclusion or that the witnesses who made the affidavits of August 23 will, on a retrial, testify materially different from their original testimony, or that they will testify to any facts tending to destroy their previous evidence. For these reasons, the instant case must be distinguished from the case of Dennis v. State (1885), 103 Ind. 142, 2 N.E. 349. The affidavits repudiated by a later affidavit might be used by way of impeachment, but under the settled rule of this court, a new trial will not be granted on the ground of newly-discovered evidence which merely tends to impeach the testimony of a witness or show that his testimony at a former trial was false. Hire v. State (1896), 144 Ind. 359, 43 N.E. 312.
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