Lodyga And Mantych v. State

• Decision Date: 28 January 1932
• Docket Number: 25,266
• Citation: 179 N.E. 542,203 Ind. 494
• Parties: Lodyga and Mantych v. State of Indiana
• Court: Indiana Supreme Court

179 N.E. 542

203 Ind. 494

Lodyga and Mantych v. State of Indiana

No. 25,266

Supreme Court of Indiana

January 28, 1932

Rehearing denied May 11, 1932.

1. CONSPIRACY---Sufficiency of Affidavit Charging Crime.---An affidavit charging conspiracy to commit a felony (2882 Burns 1926), to be good as against a motion to quash, must not only state facts showing a conspiracy, but must also charge the felony with the same particularity as though the accused were to be tried for the felony alone. p. 498.

2. INDICTMENT AND AFFIDAVIT---Particularity and Certainty Required.---Particularity and certainty in criminal pleading are met by "a statement of facts constituting the offense in plain and concise language" (2202, cl. 2 Burns 1926) by which the defendant is apprised of the nature and character of the charge against him, and, in case of a conviction, so the court may pronounce judgment according to the right of the case. p. 498.

3. INDICTMENT AND AFFIDAVIT---Sufficiency---When Statute States Specifically what Constitutes the Crime.---When the statute defines an offense and states specifically what constitutes it, an indictment or affidavit in the lanugage of the statute is sufficient. p. 498.

4. CONSPIRACY---To Commit a Felony---Charging Possession of Still without Stating the Purpose of its Possession---Held Insufficient but Superfluous.---In an affidavit charging a conspiracy to commit a felony, to wit: "the unlawful and felonious possession and control of stills and distilling apparatus" and the transportation of intoxicating liquor in an automobile in the state, the quoted language, being insufficient to state the charge of having unlawful possession of a still for the purpose of manufacturing intoxicating liquor, will be treated as surplusage, but leaving a sufficient charge of conspiracy to com- mit the felony of transporting intoxicating liquor in an automobile. p. 499.

5. CONSPIRACY---To Commit a Felony---Held Sufficient.---A count of an affidavit charging conspiracy to commit a felony, to wit: "the transportation of intoxicating liquor in automobiles" in the state of Indiana held sufficient. p 499.

6. INTOXICATING LIQUORS---Affidavit Charging Conspiracy to Commit Felony of Transporting Intoxicating Liquor in Automobile---Held Sufficient.---An affidavit charging a conspiracy between two or more persons to commit the felony of transporting intoxicating liquor in automobiles in the State of Indiana, which is sufficiently certain to apprise the defendants of the charge against them and enable them to plead former jeopardy, is sufficient. p. 499.

7. INTOXICATING LIQUORS---Transporting in Automobile under Act of 1923, Transporting for Lawful Purposes Need not be Negatived in Affidavit or Proof.---In a prosecution for feloniously transporting liquor in an automobile under the act of 1923 (Acts 1923, ch. 34, p. 108), it was not necessary for the State to allege or prove that the transportation was not for lawful purposes, although the statute contained a proviso permitting the transportation of such liquor for lawful purposes, but the exception was not within the part of the statute defining the offense. p. 499.

8. INDICTMENT AND AFFIDAVIT---Sufficiency of Count of Affidavit on Motion in Arrest of Judgment---Sufficient if Good on Motion to Quash.---A count of an affidavit which has been held good on a motion to quash would be good on a motion in arrest of judgment which requires less strictness in stating the facts than in a motion to quash. p. 499.

9. SEARCHES AND SEIZURES---Nature of Search Warrant---Writ of Discovery for Procuring Evidence of Crime.---A search warrant is in the nature of a writ of discovery employed by the state for purpose of procuring relevant evidence of a crime. p 501.

10. SEARCHES AND SEIZURES---Search Warrants Issued by Justices---Not Limited to Township in which Issued.---The authority of a justice of the peace to issue search warrants is not limited to the search of places in his own township, but such warrants may be used to search places anywhere in the county of which the township is a part. p. 501.

11. SEARCHES AND SEIZURES---Affidavit for Search Warrant---Description of Place to be Searched.---An affidavit on which a search warrant issues must describe the place to be searched with such particularity as to leave no discretion to the officer as to what place is to be searched. p. 502.

12. SEARCHES AND SEIZURES---Affidavit for Search Warrant---Description of Place to be Searched---Section Number without Township or Range of no Value.---The words "section 28" in the description of the place to be searched, a place in the country, have no probative value where the township and range numbers are not given, as the civil township may be so bounded as to include more than one section of the same number. p. 502.

13. SEARCHES AND SEIZURES---Search Warrant---Description of Place to be Searched Held Sufficient.---A search warrant describing the place to be searched as "the house, buildings and premises situate... 9 miles southwest of South Bend on the Tamarack road, first house south of Inwood road on east side of Tamarack road in the county of St. Joseph and state of Indiana" was sufficient. p. 502.

14. CONSPIRACY---To Commit a Felony---Namely, to Have Possession of a Still to Manufacture Intoxicating Liquor---Instruction as to Conspiracy to Commit Felony Authorized.---In a prosecution of two defendants for conspiracy to commit the felony of having possession of a still for the manufacture of intoxicating liquor, evidence that one defendant had charge of the still and distilling apparatus used in such manufacture and that the other defendant disposed of the liquor made authorized an instruction on conspiracy to commit a felony (2882 Burns 1926). p. 503.

15. INTOXICATING LIQUORS---Conspiracy to Commit Felony of Possessing Still for Manufacture of Liquor---Evidence Held Admissible to Show Conspiracy.---In a prosecution for conspiracy to commit the felony of having possession of a still and distilling apparatus for the manufacture of intoxicating liquor, where the evidence showed that the defendants had operated a still at one point and then moved it to the place where it was found by the officers executing a search warrant, the moving of the plant from one location to the other was not such a discontinuance of the business as rendered evidence of acts at the former location inadmissible to show guilty knowledge and their relations to each other. p. 503.

16. CRIMINAL LAW---Prosecution for Felony---Penalty Imposed by Trial Court---Not Subject to Change on Appeal.---In a prosecution for a felony, the penalty imposed by the trial court, so long as it does not exceed the limits fixed by the statute defining the offense, is not subject to change on appeal. p. 505.

From St. Joseph Circuit Court; Arthur L. May, Judge pro tem.

William Lodyga and George Mantych were found guilty by a jury of conspiring to commit the felony of having possession of a still and distilling apparatus for the manufacture of intoxicating liquor (Acts 1923, ch. 33, p. 107), and unlawfully manufacturing intoxicating liquor (Acts 1923, ch. 23, p. 70), and William Lodyga was also convicted of feloniously transporting intoxicating liquor in an automobile (Acts 1923, ch. 34, p. 108), and they appealed.

Affirmed.

George Kurtz, Walter R. Arnold and Charles W. Lewinski, for appellants.

Arthur L. Gilliom, Attorney-General, and Edward J. Lennon, Jr., Deputy Attorney-General, for the State.

OPINION

Myers, J.

This prosecution was begun January 25, 1926. The date of each offense named in the affidavit is "on or about the -- day of April, 1925." The State's evidence fixes the date April 24, 1925. On proclamation of the Governor, the acts of 1925 were not in force until 4 o'clock p. m. April 25, 1925.

Looking to the affidavit, appellants were charged in four counts with: (1) Unlawfully having in their possession and under their control a still and distilling apparatus for the manufacture of intoxicating liquor, ch. 33, Acts 1923 p. 107; (2) unlawfully manufacturing intoxicating liquor, ch. 23, Acts 1923 p. 70; (3) unlawfully transporting intoxicating liquor in automobiles, ch. 34, Acts 1923 p. 108; and (4) unlawfully conspiring and confederating together, each with the other, for the purpose of committing a felony, to wit, "the unlawful and felonious possession and control of stills and distilling apparatus and the transportation of intoxicating liquor in automobiles in said state," Acts 1905 p. 584, § 2882 Burns 1926.

Lodyga was convicted on all four counts separately, and Mantych on all separately except the third. Judgment and sentence accordingly. The errors here assigned challenge the court's action in overruling the separate motion of each appellant to quash the fourth count of the affidavit; overruling their separate motions for a new trial; overruling their separate motions in arrest of judgment; and in overruling their separate motions to modify each judgment.

The alleged fatal defects in the fourth count are: Insufficient facts to state a public offense; failure to charge a public offense with sufficient certainty; and that it charges a conspiracy to commit two separate and distinct felonies and for that reason bad for duplicity.

A conspiracy is defined by statute, § 2882 supra, as follows: "Any person or persons who shall unite or combine with any other person or persons for the purpose of committing a felony, within or without this state; or any person or persons who shall knowingly unite with any other person or persons, body, association or combination of persons, whose object is the commission of a felony or felonies, within or without this state," etc. It is true, as claimed by appellant, the affidavit, to...