Herron v. The State
| Decision Date | 09 March 1897 |
| Docket Number | 2,336 |
| Citation | 46 N.E. 540,17 Ind.App. 161 |
| Parties | HERRON v. THE STATE |
| Court | Indiana Appellate Court |
From the Montgomery Circuit Court.
Affirmed.
James Wright and James M. Seller, for appellant.
W. A Ketcham, Attorney-General, Merrill Moores and Dumont Kennedy for State.
This cause was transferred to this court by the Supreme Court.
The appellant was charged with violating the provisions of section 4, of the Act of March 11, 1895 (Acts 1895, section 4, p. 250). A motion to quash the affidavit was overruled. A trial by jury resulted in a verdict of guilty as charged. Over a motion in arrest of judgment and a motion for a new trial, the court rendered judgment on the verdict.
The errors assigned by appellant and argued by his counsel in their brief are the overruling of his motion to quash the affidavit, and his motion for a new trial.
Counsel for the appellant insist that the affidavit is bad for duplicity. Omitting the formal parts, the affidavit reads as follows: "William Royer, of lawful age, being duly sworn upon oath says, he is informed and believes that at and in the county of Montgomery, and State of Indiana, on the 4th day of July, 1895, one Thomas Herron did then and there unlawfully erect, caused to be erected, and kept in position certain screens, blinds, and obstructions which said blinds, screens, and obstructions were placed by said Thomas Herron in a certain building and room kept, operated, and controlled by the said Thomas Herron, in which said room intoxicating liquors were sold on July 4, 1895, and are sold by virtue of a license issued under the laws of the State of Indiana, in less quantities than a quart at a time, to be drunk on said premises and in said room, that sales of intoxicating liquor are forbidden by the laws of the State of Indiana on said 4th day of July, and that said curtains, blinds and screens did then and there obstruct the entire view of said room so kept by the said Thomas Herron, from the highway upon which said room is situated and from the people who passed upon said highway in front of and by said room so kept by the said Thomas Herron, contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Indiana."
The statute under which the affidavit is filed is as follows: "Any room where intoxicating liquors are sold by virtue of a license issued under the law of the State of Indiana, for the sale of spirituous, vinous, malt or other intoxicating liquors in less quantities than a quart at a time, with permission to drink the same upon the premises, shall be situated upon the ground floor or basement of the building where the same are sold, and in a room fronting the street or highway upon which such building is situated, and said room shall be so arranged, either with window or glass door, as that the whole of said room may be in view from the street or highway, and no blinds, screens or obstructions to the view shall be arranged, erected, or placed so as to prevent the entire view of said room from the street or highway upon which the same is situated during such days and hours when the sales of such liquors are prohibited by law. * * *"
It is well settled in this State that when duplicity clearly exists it is sufficient ground for sustaining a motion to quash. Davis v. State, 100 Ind. 154; Joslyn v. State, 128 Ind. 160, 27 N.E. 492; Knopf v. State, 84 Ind. 316; Fahnestock v. State, 102 Ind. 156, 1 N.E. 372.
Before an affidavit can be held bad for duplicity there must be a joinder of two or more separate and distinct offenses in one and the same count. McCollough v. State, 132 Ind. 427, 31 N.E. 1116; Kiley v. State, 120 Ind. 65, 22 N.E. 99; State v. Weil, 89 Ind. 286.
Is the charge in the affidavit sufficient to sustain a conviction either under the statute above set out, or for a sale of intoxicating liquors on the fourth day of July? It does charge a violation of the provisions of the above statute. Does it charge an unlawful sale on the day named? Without attempting to set out all the necessary averments in an affidavit charging such unlawful sale, it is sufficient to say that this affidavit does not state to whom a sale was made, nor does it state that on that day a sale of intoxicating liquors was made, to be drunk as a beverage. Dowdell v. State, 58 Ind. 333; Allman v. State, 69 Ind. 387; Morel v. State, 89 Ind. 275.
The affidavit may contain averments not absolutely necessary, but it cannot be held bad for duplicity because it contains a part only of the averments necessary to charge an offense under another and different statute. We do not think the affidavit charges the appellant with having committed two different offenses, defined in two different sections of the statutes. The motion to quash was properly overruled.
It is urged by the State that the questions raised by the motion for a new trial are not properly in the record.
On the 14th day of September, 1895, a jury was impaneled to try the appellant, and on the same day returned a verdict of guilty. On the 8th day of October, 1895, during the term at which the verdict was rendered, the appellant filed a motion for a new trial. At the same term, on the 21st day of October, 1895, the motion for a new trial was overruled, to which appellant excepted, and thirty days' time was given within which to prepare and file a bill of exceptions. No bill was filed within the time thus allowed. On the date last named the appellant filed his motion in arrest of judgment. At the next succeeding term of court, on the 6th day of November, 1895, the motion in arrest was overruled and exception taken, and thirty days' time given to file a bill of exceptions. No bill was filed within the time given. At the same term of court, on the 23d day of December, 1895, judgment was rendered on the verdict and thirty days' time given to file a bill of exceptions, "and it is ordered that the time heretofore given said defendant in which to file a bill of exceptions be, and the same is hereby extended thirty days from this date." On the 2d day of January, 1896, bill of exceptions number one, and bill of exceptions number two were filed and have been certified as a part of the record.
Section 1916, Burns' R. S. 1894, provides, "All bills of exceptions, in a criminal prosecution, must be made out and presented to the judge at the time of the trial, or within such time thereafter as the judge may allow, not exceeding sixty days from the time judgment is rendered."
The record shows that within the time allowed by the court after judgment was rendered, the appellant filed his bill of exceptions.
In a criminal cause the trial is not concluded until judgment is rendered and until that time the power of the court to extend the time of making out and presenting a bill of exceptions is not exhausted. Barnaby v. State, 106 Ind. 539, 7 N.E. 231.
In defining the word "trial" it was said in Sturgeon v. Gray, 96 Ind. 166, that, "The word 'trial,' as used in the above section, must be held to include all the steps taken in the cause, from its submission to the jury to the rendition of the judgment."
The case of Kelsey v. Hay, 84 Ind. 189, cited by appellant, was a civil cause and is based upon a statute, the phraseology of which is unlike the statute above set out.
The appellant asked that the following instruction be given, which was refused: This was not error. State v. Gerhardt, 145 Ind. 439, 44 N.E. 469.
Appellant's counsel insist that the court erred in giving oral instructions to the jury after having been requested to give all instructions in writing, while the State contends that the record does not affirmatively show that the court was requested, before the beginning of the argument, to instruct the jury in writing, and for that reason no question can be raised as to the giving of oral instructions.
Section 1892, Burns' R. S. 1894 (1823, Horner's R. S. 1896), Subdiv. 5, provides that, "The court must then charge the jury; which charge, upon the request of the prosecuting attorney, the defendant or his counsel, made at any time before the commencement of the argument, shall be in writing, and the instructions therein contained numbered and signed by the court."
The bill of exceptions states that it contains all the instructions given by the court at the request of the appellant, and also the instructions given by the court of its own motion; and that it contains all the instructions oral and written, given at the trial of the cause. It appears from the record that the appellant requested that the instructions to the jury be given in writing. Immediately preceding the instructions given by the court of...
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