Hicks v. State

• Decision Date: 23 February 1926
• Docket Number: 24,992
• Citation: 150 N.E. 759,197 Ind. 294
• Parties: Hicks v. State of Indiana
• Court: Indiana Supreme Court

150 N.E. 759

197 Ind. 294

Hicks v. State of Indiana

No. 24,992

Supreme Court of Indiana

February 23, 1926

1. INDICTMENT.---Objection that indictment for driving automobile while intoxicated does not over the place where driven may be made by motion to quash but not by motion in arrest of judgment.---An objection that an indictment for driving an automobile while intoxicated does not aver the place where driven other than to charge that it was driven in the county of the indictment may be made by a motion to quash but not by motion in arrest of judgment. p 296.

2. INDICTMENT.---Where a statute defines a crime and states what shall constitute a violation thereof, it is sufficient to charge the offense in language of the statute.---Where a statute defines a crime and states what acts shall constitute a violation thereof, it is sufficient to charge the offense in the language of the statute. p. 296.

3 INDICTMENT.---Indictment charging driving automobile while intoxicated sufficiently describes the place of the offense by alleging it was in the county.---In an indictment for driving an automobile while intoxicated, it is sufficient to allege that the act constituting the crime was done in the county. p. 296.

4. CRIMINAL LAW.---Finding of guilty cannot be based on inference drawn from another inference.---A finding of guilty cannot be based on an inference drawn from another inference p. 298.

5 AUTOMOBILES.---Evidence held insufficient to sustain conviction for operating automobile while intoxicated.---Evidence held insufficient to sustain conviction for operating an automobile while intoxicated. p. 298.

From Perry Circuit Court; Fred A. Heuring, Judge.

William Hicks was convicted of operating an automobile while intoxicated, and he appeals.

Reversed.

Oscar C. Minor, for appellant.

Arthur L. Gilliom, Attorney-General and Edwin Steers, for the State.

OPINION

Willoughby, J.

The appellant was indicted for operating an automobile while in an intoxicated condition. The charging part of the affidavit is as follows: "That on or about the 13th day of June, 1924, at the county of Perry, in the State of Indiana, one William Hicks did then and there unlawfully operate and drive a motor vehicle, an automobile, while in a state of intoxication, and was then and there under the influence of intoxicating liquor while driving said automobile, in violation of the laws of the State of Indiana." * * *.

The appellant entered a plea of not guilty and was tried by jury and a verdict of guilty returned and that he be fined in the sum of $ 10 and sentenced to forty days on the penal farm. From such judgment appellant appeals and assigns as error that the court erred in overruling his motion for a new trial, and that the court erred in overruling his motion in arrest. We will first consider the motion in arrest of judgment.

The motion in arrest of judgment is upon the ground that the indictment does not charge a public offense. Appellant says that the indictment is not sufficient because there is no averment as to where or what place he drove the automobile, and only says at Perry county, Indiana. This objection is not properly presented by a motion in arrest of judgment because it is, in effect, saying that the indictment is not sufficient because the offense is not described with sufficient certainty. That is a sufficient reason for quashing an indictment, but not for sustaining a motion in arrest of judgment. However, it may be said that this indictment is not open to that objection. It has been held that where a statute defines a crime and states what acts shall constitute a violation thereof, it is sufficient to charge the offense in the language of the statute. Asher v. State (1924), 194 Ind. 553, 142 N.E. 407; Johns v. State (1902), 159 Ind. 413, 59 L. R. A. 789. In indictments of this character, it is sufficient to allege that the acts charged were done in the county. State v. New (1905), 165 Ind. 571, 76 N.E. 400; Keith v. State (1883), 90 Ind. 89; State v. Burgett (1849), 1 Ind. 479. The court did not err in overruling the motion in arrest of judgment.

Under his motion for a new trial, appellant presents the question of the sufficiency of the evidence to sustain the verdict. Five witnesses testified on behalf of the state. The first witness testified that he saw an automobile standing at the side of the road or street and near it on the ground was a registration card and on the card was the name of William Hicks, Tell City. The witness picked up the card and put it in the car. This witness says: "I didn't see defendant. He was not in the car. He was not driving the car. Never at that time saw him driving the car."

Another witness for the state testified that he saw a car which he thought was a one-seated Ford standing on the bank below the flour mills, a little below Taylor street in Cannelton. He says: "I never saw William Hicks on or about June 13, 1924. I saw Bud Weatherholt in the car. I know the defendant. He was not in the car. I never saw him operating the car. Never saw him at all."

Another witness testified: "I live in Cannelton. Lived there for about six years. Manager of flour mill in June, 1924. As I went to the mill about 7...