Lowery v. State
| Decision Date | 09 April 1925 |
| Docket Number | 24,779 |
| Citation | 147 N.E. 151,196 Ind. 316 |
| Parties | Lowery v. State of Indiana |
| Court | Indiana Supreme Court |
Rehearing Denied June 12, 1925, Reported at: 196 Ind. 316 at 321.
1. CRIMINAL LAW.---Sufficiency of affidavit cannot be questioned for first time on appeal.---The sufficiency of the facts stated in an indictment or affidavit, or in a count thereof to charge the commission of a public offense, cannot be attacked for the first time by an assignment of error, on appeal; this does not challenge the jurisdiction of the court. p. 317.
2. INTOXICATING LIQUORS.---Evidence held to show transportation of liquor.---In a prosecution for transporting liquor evidence of facts and circumstances considered and held to warrant an inference of guilt. p. 318.
3. CRIMINAL LAW.---Credibility and weight of evidence is for the jury and will not be set aside on appeal if it supports the verdict.---The credibility and weight of evidence and the inferences to be drawn from facts proved, are primarily for the jury, and secondarily for the trial judge, in passing on the motion for a new trial, and if the jurors and the judge have given credit to testimony, as to the conduct of accused which might seem improbable or foolish conduct, their action will not be set aside on appeal. pp. 321, 322.
4. INTOXICATING LIQUORS.---It is not necessary to negative exceptions contained in another section of the statute.---In charging an offense under 1, ch. 23, Acts 1923 p. 70, it is not necessary, in order to show that the court had jurisdiction, for the affidavit to negative the exceptions contained in other sections; it is sufficient to charge the offense in the language of the statute. p. 322.
From Grant Circuit Court; J. Frank Charles, Judge.
Charles Lowery was convicted of a violation of the prohibition law and he appeals.
Affirmed.
John A Kersey, for appellant.
U. S. Lesh, Attorney-General, and Mrs. Edward Franklin White, Deputy Attorney-General, for the State.
Appellant and another were jointly charged in the first count of an affidavit with unlawfully and feloniously transporting two gallons of intoxicating liquor in an automobile, and in the second count with unlawfully transporting two gallons of intoxicating liquor. The jury returned a verdict finding them both guilty as charged in the second count, and that each should be fined $ 250 and imprisoned for 120 days, and judgment was rendered accordingly. Neither count of the affidavit was challenged in any manner in the court below, but appellant seeks to question the sufficiency of the second count for the first time on appeal, by assigning as error that the facts charged in that count do not constitute a violation of law, and that "the court had no jurisdiction of the subject of the action on the second count." The sufficiency of the facts stated in an indictment or affidavit, or in a count thereof, to charge the commission of a public offense, cannot be attacked for the first time by an assignment of error, on appeal. Boos v. State (1914), 181 Ind. 562, 565, 105 N.E. 117; King v. State (1921), 191 Ind. 306, 132 N.E. 628.
Appellant does not question the jurisdiction of the court over the subject-matter of prosecutions for the unlawful transportation of intoxicating liquor, but insists that the second count fails to charge such an offense because it does not state the method of transportation, as being in an automobile or other vehicle, or in a water or air craft. This alleged insufficiency of the facts stated in one of the counts does not constitute a challenge of the jurisdiction of the court, and cannot be considered, where no such objection was made in the court below.
Overruling the motion for a new trial is assigned as error, under which appellant insists that the verdict is not sustained by sufficient evidence and is contrary to law. Witnesses testified that on June 4, 1924, a man acting as a detective who had been sworn as a deputy sheriff, was driving east from the city of Marion, and as he passed the Campbell school house, three and a half or four miles east, where there is a cross-road, he met appellant driving west in a Ford car, a few rods east of the school house, and saw his codefendant walking south by the school house; that as appellant passed the corner the codefendant motioned for him to come down that way; that appellant drove west a quarter of a mile or so, where he turned around and drove back to the cross-road, and turned south; that he drove half a mile south to where some bars opened through the fence into a woods on the east side of the road, and...
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