Jenkins v. State

Decision Date05 November 1919
Docket NumberNo. 23545.,23545.
Citation188 Ind. 510,124 N.E. 748
CourtIndiana Supreme Court


Appeal from Circuit Court, Randolph County; Theo. Shockney, Judge.

Fossie L. Jenkins was convicted for having intoxicating liquors in his possession with intent to sell the same, and he appeals. Affirmed.Thomas V. Miller and Gene Williams, both of Muncie, for appellant.

Ele Stansbury and Edward M. White, both of Indianapolis, for the State.


Appellant was charged by affidavit with having intoxicating liquor in his possession with intent to sell, etc. Chapter 4, § 4, Acts 1917, p. 15. He was tried by jury, verdict of guilty was returned, and judgment rendered thereon. The errors assigned and relied on for reversal are:

(1) The court erred in overruling appellant's motion to quash the affidavit.

(2) The court erred in overruling appellant's motion for a new trial.

(3) The court erred in overruling appellant's motion in arrest of judgment.

[1][2] Appellant's motion to quash the affidavit is based upon the ground that “the facts in said affidavit do not constitute a public offense.” Appellant claims under this heading of error that the affidavit is bad because it fails to negative all of the exceptions in the statute. The affidavit charges the appellant with having and keeping in his possession nine pints of whisky with the intent to sell, barter, give away, etc., under section 4 supra. A charge of this kind under this section need not negative the exceptions in the statute, because they are not a part of the definition of the offense. When exceptions are in a subsequent section or in a separate proviso in the same section, they need not be negatived. Yazel v. State, 170 Ind. 535, 538, 84 N. E. 972;State v. Paris, 179 Ind. 446, 453, 101 N. E. 497;State v. Sarlin, 123 N. E. 800.

[3] Appellant also contends under this heading of error that the affidavit is too indefinite and uncertain; but this is not the ground of appellant's motion. Having chosen the ground of his motion in the trial court, he will not be permitted to attack the affidavit here on a different theory. Gilmore v. State, 177 Ind. 148, 97 N. E. 422. Had the trial court sustained this motion to quash, we would then look beyond the grounds which were specified in the motion to sustain the court's action. Sarlin v. State, supra. But having chosen the ground stated in the motion, appellant is deemed to have waived his right to question the affidavit for uncertainty.

[4] Under the second error relied on for reversal, appellant presents the sufficiency of the evidence. He specifically claims that there was no evidence from which the jury might have inferred that appellant had liquor in his possession with the intent to sell, barter, give away, or otherwise dispose of it in violation of law. That is to say, his contention narrows itself to the proposition that there was no evidence to show intent. On this point the evidence shows that appellant boarded an interurban car at Union City, Ind., on the day that he was arrested. The motorman on that car testified that he observed appellant approaching the car at Union City, and that his attention was more particularly called to appellant by the fact that appellant made a motion which indicated that he was pointing out the motorman to a man who was walking with appellant. This motorman testified that appellant and his companion were observed by him when about 50 feet away; that they approached him, passed by him, and boarded the interurban car. This motorman observed that appellant was carrying under his arm a pasteboard box, the same box that was afterwards taken off the car at Winchester, Ind.,...

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