Juskulski v. State

• Decision Date: 22 May 1934
• Docket Number: No. 25538.,25538.
• Citation: 206 Ind. 503,190 N.E. 423
• Parties: JUSKULSKI v. STATE.
• Court: Indiana Supreme Court

206 Ind. 503

190 N.E. 423

JUSKULSKI

v.STATE.

No. 25538.

Supreme Court of Indiana.

May 22, 1934.

Appeal from Criminal Court, Lake County; Martin J. Smith, Judge.

Joe Juskulski was convicted of selling intoxicating liquor and of having been convicted twice previously for violating same statute, and he appeals.

Reversed, with instructions.

McMahon & Conroy, of Hammond, for appellant.

Arthur L. Gilliom, Atty. Gen., and Harry L. Gause, Deputy Atty. Gen., for the State.

MYERS, Judge.

In the court below a jury returned a verdict finding appellant guilty of the offense charged in the second count of the affidavit— selling intoxicating liquor—and that he had been twice previously convicted of violating section 4, Acts 1925, pp. 144, 145, c. 48, section 2717, Burns' 1926, and judgment and sentence by the court was accordingly assessed. Motion for a new trial overruled, and this ruling is the error assigned on appeal to this court.

The motion for a new trial includes several causes, some of which have been waived. Those deserving consideration are: Verdict of the jury contrary to law; verdict not sustained by sufficient evidence; and the admission in evidence of a certain transcript from the Gary city court.

Preliminary to a discussion of the questions submitted, we may here say that this being a criminal case, the determination of the admissibility of the evidence is a function alone of the trial court, but the weight of the evidence, the inferences to be drawn from the facts proved, and whether the defendant has violated the law are matters exclusively for the jury. Bryant v. State (Ind. Sup.) 186 N. E. 322;Sprague v. State, 203 Ind. 581, 181 N. E. 507;Deal v. State, 140 Ind. 354, 39 N. E. 930;Keiser v. State, 83 Ind. 234;Brown v. State, 71 Ind. 470.

The real question in this case involves the admission in evidence of State's Exhibit No. 2, which is as follows:

“In the City Court of the City of Gary, Indiana.

“Transcript.

“State of Indiana

v.

Joseph Jaskulski

“1650 Mass. St.

Key.

V. S. L. L.

(Galasini)

“On the 7th day of Dec. 1925 filed with me an affidavit charging that the defendant, Joseph Jaskulski, on or about the 5th day of Dec. 1925, at the county of Lake in the state of Indiana, — upon which I issued a warrant for his arrest returnable forthwith and delivered the same to the chief of police of said city.

“Afterward said Chief of Police returned said warrant endorsed as follows:

“‘Came to hand this — day of —, 192—, I have arrested the within named — and have — body now in court.

“‘— Chief of police.

“‘By — deputy.’

“On —, 192—, I issued a subpœna for — and delivered to the chief of police, said subpœna was also returned served, —.

Dec. 17, 1925.

“And the defendant having been arraigned upon said charge for plea, said he is not guilty, and the trial having been had, and the court having heard the evidence and being fully advised in the premises, finds the defendant is guilty as charged in the affidavit. Judgment withheld until Dec. 29, 1925.

Dec. 29, 1925.

“It is therefore considered and adjudged by the court that the said defendant be imprisoned in the jail of Lake County, Indiana, for 35 days, and that he pay the state of Indiana a fine of One Hundred fifty dollars, and the costs of this prosecution, taxed at thirty dollars, without relief from valuation or appraisement laws; and that he stand committed to the jail of Lake County until said fine and costs are paid or replevied.

“C. M. Greenlee, City Judge.

“The defendant prayed an appeal to the Lake — Court, and the court fixed the bond in the sum of $— which bond was filed and approved by the court.

“State of Indiana, Lake County—ss.:

“Costs were taxed as follows —

“City of Gary docket fee —

“Prosecuting attorney —

“Transcript fee $1.50”

Then follows the certificate of the Gary city court clerk as to the accuracy and completeness of the transcript.

At the same time, and in connection with the foregoing transcript, what is designated as a second sheet was admitted in evidence, being a certified copy of an affidavit in two counts filed on December 7, 1925; the first charging that appellant, on December 5, 1925, unlawfully purchased, received, gave away, and otherwise disposed of certain intoxicating liquor, and the second charging that appellant, on December 5, 1925, unlawfully maintained or assisted in maintaining a common nuisance, in violation of section 24 of the 1925 act (section 2740, Burns'), supra, and also charging that appellant was, on —, 1926, convicted in the Gary city court in cause —, Lake County, Indiana, of selling and otherwise disposing of intoxicating liquor, contrary, etc.

That part of the statute, section 4, supra, relative to the present question, provides that: “Any person violating any provision of this section, upon conviction, shall be fined *** to which shall be added imprisonment in the county jail *** for the first or second offense, and, upon a third or subsequent conviction, he shall be imprisoned in the state prison not less than one year nor more than two years, to which may be added a fine of not less than” $200 nor more than $1,000.

The second count of the affidavit in the instant case charged that appellant “did then and there unlawfully sell, barter, exchange, give away and otherwise handle and dispose of certain intoxicating liquor,” and that he was, on October 7, 1926, convicted in the criminal court of Lake county of a violation of section 4, and on December 29, 1925, in the city court of Gary, Lake county, Ind., he was convicted of violating section 4.

It will be observed that appellant, in the present case, was charged with doing certain acts declared to be unlawful by section 4, and that he had been previously twice convicted for offenses defined by that section. Such was the charge he was called upon to meet, and the burden was upon the state to prove the change as laid.

State's Exhibit 2, as we have seen, included an affidavit in two counts, and a general finding of guilty; that is to say, guilty on both counts. The objection to the admission of the transcript in the first instance was that he “could have been found guilty under section 24,” which would not be evidence to sustain the allegation in the affidavit of a prior conviction. The objection was overruled and the transcript read in evidence. Appellant, on hearing the exhibit read, thereupon moved to strike it out and requested the court to instruct the jury to disregard the same for the reason that the transcript upon its face shows that the defendant has appealed from the judgment rendered by the Gary city court to the criminal court of Lake county, which operated as a vacation of that judgment. The state insists that the transcript disclosed the character of the evidence sought to be introduced, and appellant's first objection to its admission in evidence must have been the result of an examination of it. On this assumption alone the state relies for support of her contention that reversible error cannot be predicated upon a motion to strike out evidence of a witness for reasons different from those interposed when the evidence was introduced.

It is true, this court has held that “a motion to strike out and withdraw the evidence, or any part of the evidence of a witness, for reasons different from those interposed when the evidence was offered and introduced, is properly overruled.” Lane v. State, 151 Ind. 511, 51 NE. 1056, 1058;Kline v. State, 194 Ind. 334, ...