Kirts v. State
| Decision Date | 19 March 1926 |
| Docket Number | No. 24504.,24504. |
| Citation | 151 N.E. 132,198 Ind. 39 |
| Parties | KIRTS v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Warren Circuit Court.
George Kirts was convicted of unlawfully transporting intoxicating liquor, and he appeals. Affirmed.Edwin F. McCabe, of Williamsport, Charles E. McCabe, of La Fayette, and Edward L. McCabe, of Williamsport, for appellant.
U. S. Lesh, Atty. Gen., and Mrs. Edward Franklin White, Deputy Atty. Gen., for the State.
Appellant, in the court below, was convicted of an offense defined by section 1, Acts 1923, p. 108, c. 34. Accordingly, judgment was rendered. Appellant appealed and has assigned as error in this court the overruling of his motion for a new trial, wherein the causes relied on are the refusal of the trial court to give his requested instruction No. 23, and in giving instructions Nos. 1, 2, 16, and 21 upon its own motion.
[1] The evidence is not before us. This being true, it follows that certain well-settled rules, influential in determining questions pertaining to the refusal or to the giving of instructions, should be observed. Applying these rules to the case at hand, appellant must not only establish error by the record, but also affirmatively rebut the presumption that the requested instruction was refused because not applicable to the evidence, or that it was covered, or substantially so, by instructions given. Vorhees v. State, 134 N. E. 855, 192 Ind. 15;Kell v. State, 142 N. E. 865, 194 Ind. 374;Rokvic v. State, 143 N. E. 357, 194 Ind. 450.
[2] Furthermore, this court will not consider instructions given by the court erroneous, if correct under the issues upon any supposable state of facts. McIntosh v. State, 51 N. E. 354, 151 Ind. 251;Schuster v. State, 99 N. E. 422, 178 Ind. 320;Kilgore v. Gannon, 114 N. E. 446,185 Ind. 682, L. R. A. 1917E, 530.
[3] The affidavit in this case, in substance, charged that appellant, on February 1, 1923, unlawfully transported in his automobile more than one gallon of intoxicating liquor. Appellant, by his instruction refused, sought to have the jury told, in effect, that the transportation of less than a gallon of intoxicating liquor in the pocket of its owner would not be a crime. At the time the instruction was offered, mere possession of intoxicating liquor was not an offense. Hence, it is insisted that possession of less than a gallon of intoxicating liquor for the exclusive use of its owner, whether being transported or not, was lawful. We cannot agree with this contention. The charge, as we have seen, was unlawfully transporting the article forbidden in a certain vehicle, and not mere possession. There was no error in refusing the instruction.
[4] Directing our attention to the instructions given by the court upon its own motion and challenged as being erroneous, it will be observed that Nos. 1 and 16 informed the jury that the material allegations of the affidavit were “the unlawful transportation of intoxicating liquor in an automobile in the county of Warren and state of Indiana” on a date named. Appellant insists that the quantity of liquor mentioned in the affidavit was a matter of description in charging the offense, and must be proved precisely as charged, citing Sharley v. State, 54 Ind. 168;Hart v. State, 55 Ind. 599;Rooker v. State, 65 Ind. 86;Dennis v. State, 91 Ind. 291.
It does not affirmatively appear from the instructions given that the quantity of liquor transported was less than that stated in the affidavit, unless we may infer from the instructions that a less quantity was proved because the court misstated the language of the affidavit by omitting the words “more than a gallon.” However this may be, and conceding that the cases cited affirm the doctrine that matters of description in criminal pleadings, although unnecessarily alleged, must be proved as declared, still, in the instant...
To continue reading
Request your trial