Haymond v. State

• Decision Date: 19 March 1918
• Docket Number: 23,381
• Citation: Haymond v. State, 187 Ind. 267, 119 N.E. 5 (Ind. 1918)
• Parties: Haymond v. State of Indiana
• Court: Indiana Supreme Court

119 N.E. 5

187 Ind. 267

Haymond v. State of Indiana

No. 23,381

Supreme Court of Indiana

March 19, 1918

From the Delaware Circuit Court; James S. Engle, Special Judge.

Prosecution by the State of Indiana against Odbert J. Haymond.From a judgment of conviction, the defendant appeals.

Reversed.

Chauncey L. Medsker and Ira J. Young, for appellant.

Ele Stansbury, Attorney-General, Elmer E. Hastings, Dale F Stansbury and H. G. Murphy, for the state.

OPINION

Lairy, J.

Appellant was tried and convicted in the Delaware Circuit Court on an affidavit charging him with keeping and operating a place where intoxicating liquors were sold in violation of the laws of the state, and with being in possession of such liquors for such purpose in violation of the provisions of § 8351 Burns 1914, Acts 1907p. 689.A motion to quash the affidavit was filed and overruled, which ruling is assigned as error.

The affidavit follows the statute in charging that appellant at and in the county of Delaware and State of Indiana did on a date named keep, run and operate a place where intoxicating liquors were then and there unlawfully sold in violation of the laws of the State of Indiana.The principal objection urged against the sufficiency of the affidavit is that it does not specifically describe any location within the county where such place was run and operated.Indictments and affidavits in this form have been held sufficient under this statute.Donovan v. State(1907), 170 Ind 123, 83 N.E. 744;Rigrish v. State(1912), 178 Ind. 470, 99 N.E. 786.

Appellant filed an answer in abatement to the affidavit on the ground that at the time said affidavit was filed there was pending in the same court an indictment returned by the grand jury of Delaware county against said defendant, wherein and whereby he was charged with the same and identical offense with which he was charged in the affidavit to which the answer was addressed, and that the defendant had been arrested under such indictment and, at the time the affidavit was filed, was under bond to appear in court and defend against the charge of said indictment.An issue was formed on this answer by a general denial which was tried by the court and a finding rendered against appellant.The judgment was that he plead over.Appellant asserts that the finding of the court on this issue is not sustained by the evidence.The evidence shows that an indictment against defendant was pending in the Delaware Circuit Court on April 13, 1917, on which day a motion to quash, addressed to such indictment, was sustained.The affidavit on which this prosecution was based was prepared on or about April 10, 1917, and on the 11th or 12th day of April was in the hands of the clerk.The warrant was written out and delivered to the sheriff on April 13, but it is not shown whether it was signed and sealed by the clerk and delivered to the sheriff before or after the court's action on the motion to quash the indictment.The fact that the affidavit was in the possession of the clerk for a day or two previous to the ruling of the court on April 13 is not conclusive evidence of the fact that it was filed prior to that time.The clerk may have been instructed not to regard the affidavit as filed, and not to take any official action on it until after the indictment was quashed, and it may be assumed, in the absence of evidence to the contrary, that the clerk signed and sealed the warrant and delivered it to the sheriff after the court announced its ruling on that motion.The evidence shows that the file mark was not placed on the affidavit until after such ruling, and there is no direct evidence that the clerk regarded it as filed or took any official action on it prior to such ruling.

Section 1989 Burns 1914, Acts 1905p. 611, provides that all public offenses except treason and murder may be prosecuted in the circuit and criminal courts by affidavit filed in term time, except when the grand jury is in session or a prosecution by indictment or affidavit for the same offense is pending at the time of the filing of such affidavit.Under his answer in abatement the burden rested on appellant to prove that a prosecution by indictment for the same offense was pending at the time of the filing of the affidavit to which the answer was addressed.The evidence does not clearly show whether the affidavit was filed before or after the indictment was quashed.Under such a state of the evidence the finding of the trial court cannot be disturbed.

The ruling of the court on appellant's motion for a new trial is assigned as error, and several questions are presented under this assignment.

The evidence shows that appellant had been conducting a billiard room on the ground floor at No. 205 East Main street in Muncie, Indiana.The room on the ground floor was divided by partitions into three apartments.The front was used for the billiard parlor, the middle one for a storage room, and from the rear room abutting on the alley a stairway led to a basement.This stairway furnished the only means of ingress to the basement and was reached by entering the rear room either from the alley or from the front.On March 30, 1916, appellant leased the ground floor and the basement thereunder for the term of eighteen months beginning April 1, 1916, as shown by the written lease introduced in evidence, which provided that the premises should not be subleased without the written consent of the lessor.The rent provided for in the lease was paid by appellant, but he testified that he subleased the basement to other persons who were occupying it and controlling it under such sublease at the time intoxicating liquor was found in their possession and at the various times such liquor was sold in the basement as shown by the evidence.No evidence was introduced to show that any intoxicating liquor was found in any of the rooms on the ground floor, or that any such liquor was ever sold in any of such rooms.There was no evidence to show that appellant exercised any control or dominion over the rooms in the basement, or that he was in a position to exercise dominion or control, except the fact that such basement was covered by his lease.There is no evidence to show...