Lowery v. State
| Decision Date | 12 June 1925 |
| Docket Number | 24,779 |
| Citation | 148 N.E. 197,196 Ind. 316 |
| Parties | Lowery v. State of Indiana |
| Court | Indiana Supreme Court |
Original Opinion of April 9, 1925, Reported at: 196 Ind. 316.
The second count of the affidavit charged that at, etc., on, etc., appellant and another "did then and there unlawfully transport two gallons of intoxicating liquor." The statute makes it unlawful to "transport * * * any intoxicating liquor except as in this act provided," the exceptions being contained in other sections of the act. § 1, ch. 23, Acts 1923 p. 70, § 4 (as previously amended), ch. 4, Acts 1917 p. 15.
Under such circumstances it was not necessary, in order to show that the court had jurisdiction, for the affidavit to negative the exceptions contained in the other sections referred to. Jenkins v. State (1919), 188 Ind. 510, 124 N.E. 748. It was sufficient to charge the offense in the language of the statute. Asher v. State (1924), 194 Ind. 553, 142 N.E. 407.
Under subd. 9, § 2325 Burns 1926, [§ 2158 Burns 1914] § 282, Acts 1905 p. 584, authorizing the defendant in a criminal case to move for a new trial for the alleged reason that the verdict or finding is not sustained by sufficient evidence, the judge of the trial court, who saw the witnesses and heard them testify, may and should consider and pass upon the weight of conflicting evidence. But after he has approved the verdict, an appellate court, to which the evidence comes only in written or printed form, can consider only the question whether or not there is any evidence which, if believed, will support the verdict. And if there is, it cannot undertake to say that the evidence believed by the jury and the trial judge is unworthy of credit. Deal v. State (1895), 140 Ind. 354, 39 N.E. 930; Brunaugh v. State (1910), 173 Ind. 483, 511, 90 N.E. 1019; Barry v. State (1918), 187 Ind. 49, 118 N.E. 309.
The petition for a rehearing is overruled.
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