Lindsay v. State

Decision Date12 November 1924
Docket NumberNo. 24589.,24589.
Citation195 Ind. 333,145 N.E. 438
PartiesLINDSAY v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Vigo County. John P. Jeffries, Judge.

Andrew Lindsay was convicted of unlawfully possessing a still for manufacturing intoxicating liquor, and he appeals. Affirmed.

Duvall & Whitaker and Gerdink & Gerdink, all of Terre Haute, for appellant.

U. S. Lesh, Atty. Gen., and O. S. Boling, of Indianapolis, for the State.

TRAVIS, J.

Appellant was convicted of the charge of unlawfully possessing a still for the manufacture of intoxicating liquor, in violation of section 1, chapter 33, Acts 1923, and upon appeal alleges as errors:

(1) That there was no valid and constitutional law in force regarding the possession of stills for the purpose of the manufacture of intoxicating liquors.

(2) That the facts stated in the affidavit do not constitute a public offense.

(3) Error in overruling motion for a new trial.

(4) Error in overruling motion for arrest of judgment.

[1] The first assignment of error is independent of, and does not rest upon, a ruling of the trial court. An independent cause for reversal of a judgment, because of the alleged fact that there was no valid and constitutional law upon which the charge could be predicated, presents no question for review. The question of the constitutionality of the statute must first be presented to the trial court, otherwise the question may not be presented upon appeal. Pittsburg, etc., R. Co. v. Town of Wolcott (1904) 162 Ind. 399, 69 N. E. 451;Pittsburg, etc., R. Co., v. Collins (1907) 168 Ind. 467, 80 N. E. 415;Baublett v. Strickler (1921) 190 Ind. 548, 131 N. E. 1; Ewbank's Manual (2d Ed.) § 133.

[2] Under the statute the second assignment of error presents no question for decision. An independent assignment of error attacking the pleading which charges the offense, for the reason that it did not state facts sufficient to constitute a public offense, presents no error for consideration on appeal in a criminal case. Bills v. State (1918) 187 Ind. 721, 119 N. E. 465;Boos v. State (1914) 181 Ind. 562, 105 N. E. 117; Burns' 1914, §§ 341, 2231; Scherer v. State (1917) 187 Ind. 15, 116 N. E. 52.

[3] The motion for a new trial, the overruling of which by the trial court is the third assigned error, is based upon the insufficiency of the evidence to sustain the finding, and that the finding of guilty by the court is contrary to law.

Appellant incorporates in the transcript of the case for appeal what purports to be a bill of exception containing the evidence. Appellee makes the point that appellant did not present such bill of exception to the court for approval during the term at which the case was tried, and that leave to file the same thereafter was not asked for by appellant or permission given by the court. Purported bills of exceptions, although approved and signed by the judge of the court and then filed with the clerk and physically incorporated in the transcript, unless leave therefor was granted at the time of the ruling on the motion for a new trial, become no part of the record, and therefore present no exceptions for review. Robards v. State (1899) 152 Ind. 294, 53 N. E. 234;Utterback v. State (1899) 153 Ind. 545, 55 N. E. 420;Pierson v. State (1921) 191 Ind. 206, 131 N. E. 397;Taylor v. State (1921) 191 Ind. 200, 132 N. E. 294, 295; Flanagan v. State (1922; Ind. Sup.) 137 N. E. 178;Moore v. State (1923; Ind. Sup.) 141 N. E. 638, 639;McNaught v. State (1924; Ind. Sup.) 142 N. E. 418;Farb v. State (1924; Ind. Sup.) 143 N. E. 155; Burns' 1914, § 2163.

The judge of the trial court states in this certificate to the bill of exceptions that “now, within the time given, defendant tenders to the court, and the judge thereof, for his approval and signature, this, his bill of exceptions.***” It has heretofore been held that a similar statement by the court, where the bill had been presented, allowed, and filed after the time granted, was insufficient to show that the time for presenting the bill had been extended. A purported bill of exceptions to which the certificate of the court asserted that such bill of exceptions was tendered to the court within the time granted, when in fact, as disclosed by the record, no such order by the court is of record, does not by virtue of such certification become a part of the record. Bass v. State (1918) 188 Ind. 21, 120 N. E. 657.

[4] By his proposition addressed to the fourth assignment of error appellant raises the question of the constitutionality of the act, in violation of article 4, § 19, of the Constitution of Indiana, upon which the affidavit which charges the crime is based, and makes the point that the act has reference to the possession and use of stills for the manufacture of intoxicating liquor, but that such use is not specifically mentioned in the title of the act; and that stills may be for other purposes than distilling intoxicating liquor; from which it must follow that the title to the act is too broad, and that the title be narrowed and restricted to specifically point to each particular treated of under the general subject of the act as expressed by the title. This position as taken by appellant is not...

To continue reading

Request your trial
21 cases
  • Arnold v. State
    • United States
    • Indiana Appellate Court
    • December 12, 1974
    ... ... 504, 506, 260 N.E.2d 876, 877 ...         [162 Ind.App. 407] See also, Noel v. State (1973), Ind.App., 300 N.E.2d 132; Turner v. State (1968), 249 Ind. 533, 233 N.E.2d 473; McGowan v. State (1973), Ind.App., 296 N.E.2d 667; Obie v. State (1952), 231 Ind. 142, 106 N.E.2d 452; Lindsay v. State (1924), 195 ... Ind. 333, 145 N.E. 438; Waliski v. State (1922), 193 Ind. 232, 139 N.E. 363 ...         If Arnold's mutually exclusive interpretation of these two statutes be considered as limiting the discretion of the State to choose the particular statute under which a ... ...
  • Burnett v. State, 569S102
    • United States
    • Indiana Supreme Court
    • February 24, 1970
    ...N.E.2d 544; Garland v. State (1958), 237 Ind. 528, 146 N.E.2d 413; Obie v. State (1952), 231 Ind. 142, 106 N.E.2d 452; Lindsay v. State (1924), 195 Ind. 333, 145 N.E. 438; Waliski v. State (1922), 193 Ind. 232, 139 N.E. 363. The two methods by which such a question may be raised in the lowe......
  • Wayne Township v. Brown
    • United States
    • Indiana Supreme Court
    • September 9, 1933
    ... ... placed there by the overseers of the poor, and it may ... contract with charitable institutions in the state for the ... relief and support of the poor placed there as a public ... charge. p. 441 ...          3 ... PAUPERS---Poor Relief---Duty ... or that it comprehends more than is legislated upon by the ... act itself." Lindsay v. State (1924), ... 195 Ind. 333, 145 N.E. 438 ...          If we ... consider the act alone, it does not purport to be an ... ...
  • Drake v. State
    • United States
    • Indiana Supreme Court
    • April 5, 1929
    ...(N. S.) 799, 122 Am. St. 251, 11 Ann. Cas. 514, 81 N.E. 149. It has been decided, however, that the statute is constitutional. Lindsay v. State, supra; Gmeiner v. State (1925), 197 Ind. 43, N.E. 728. The court did not err in overruling the motion for a new trial. No reversible error of the ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT