Johnson v. State

• Decision Date: 17 February 1927
• Docket Number: No. 24661.,24661.
• Citation: 155 N.E. 196,199 Ind. 73
• Parties: JOHNSON v. STATE.
• Court: Indiana Supreme Court

199 Ind. 73

155 N.E. 196

JOHNSON

v.STATE.

No. 24661.

Supreme Court of Indiana.

Feb. 17, 1927.

Appeal from Criminal Court, Marion County; James A. Collins, Judge.

Evelyn Johnson, alias Thelma Patterson, was convicted of transporting intoxicating liquor, and she appeals. Reversed and remanded, with directions.

Robert R. Dalton, of Indianapolis, for appellant.

U. S. Lesh, Atty. Gen., and Arnet B. Cronk, and Carl Wilde, both of Indianapolis, for the State.

TRAVIS, J.

Appellant was charged by affidavit under Acts 1923, p. 108, § 1, c. 34, with transporting intoxicating liquor in an automobile within Marion county. She was tried by the court and convicted, and thereupon brought this appeal from the judgment upon the finding of guilty.

The sheriff of Marion county with two deputies, riding in an automobile, followed a large automobile into Indianapolis. The automobile which the officers followed continued to increase in speed as it continued toward the center of the city, and until it turned west on Sixteenth street, where it attained a speed of between 40 and 50 miles per hour. When the sheriff and his deputies had caught up with the large automobile, it turned suddenly into an intersecting street, and in so doing turned three-quarters around and stopped. A man then jumped out of the pursued car, and ran between the buildings, after which the sheriff and his deputies went to the car and found defendant sitting in the front seat. Twenty-one 5-gallon tin cans of sugar alcohol were found in the rear part of the car. The sheriff and his deputies saw the blankets which covered the cans fly off, when the pursued car crossed the railroad tracks, just before it stopped. The sheriff testified that, when he and his deputies went to the pursued car, he had a talk with defendant, in which she said that she did not know the man who had jumped out and run between the buildings, and who drove the car, and that she did not know who owned the car, or that the alcohol was in the car. She had been on her way to Terre Haute, riding in a small automobile. About two towns north west of Indianapolis, her journey was stopped because of injured tires; while waiting at the side of the highway, the large car in which she was last a passenger came along the highway. Upon inquiry by the driver concerning her predicament, and as the result thereof, she availed herself of the opportunity of returning to Indianapolis.

When re-examined, the sheriff testified that the pursued automobile was owned by Loretta Barnett, who is a sister to Lawrence Barnett, the latter of whom was seen by the sheriff, driving the same car, some time before (not disclosed when) in another part of Indianapolis. The defendant testified that she had known Lawrence Barnett, but that he was not the man who was driving the car which carried the alcohol; she had not driven the car, and did not know how to drive one.

Errors are assigned on the action of the trial court in overruling the motions (1) to quash the affidavit which charged the offense; and (2) for a new trial.

[1] It is proposed that the facts pleaded in the affidavit do not constitute a public offense; the point being that such transportation in an automobile would not be a felony unless the transportation was in an automobile, the property of another, and without such owner's consent, or unless there was in the automobile in which such intoxicating liquor was being transported firearms, or unless the automobile used for such purpose were mortgaged. The gravamen of the law upon which this charge is laid is the transportation in any kind of vehicle. This, the instrument used to carry out the transportation, is the thing which makes the act a felony, as against transportation in another manner, which is a misdemeanor. Acts 1923, p. 70, c. 23, § 1. The provisions of the law referred to by appellant do not add to the offense nor change the measure of punishment (Volderaurer v. State [1924] 195 Ind. 415 [4], 143 N. E. 674); hence they need not be pleaded to state a cause of action.

[2] Appellant's second proposition, based upon the overruling of his motion to quash, is that there is a variation between the offense as charged and the evidence. The point is that the offense is charged to have been committed in Marion county, where the evidence is that of transporting intoxicating liquors from a point in Boone county, Ind., to a point in Marion county. Appellant is mistaken in the presentation...