Lucas v. The State
| Decision Date | 07 January 1910 |
| Docket Number | 21,512 |
| Parties | Lucas v. The State of Indiana |
| Court | Indiana Supreme Court |
From Gibson Circuit Court; M. W. Fields, Special Judge.
Prosecution by The State of Indiana against Arthur Lucas. From a judgment of conviction, defendant appeals.
Affirmed.
Byron M. Johnson and Harvey Harmon, for appellant.
James Bingham, Attorney-General, E. M. White, A. G. Cavins and W H. Thompson, for the State.
Appellant was convicted before a justice of the peace of heavy hauling over a macadam and gravel road, in violation of the provisions of the act of 1907 (Acts 1907, p. 445 § 2313 Burns 1908). He appealed to the circuit court, in which two additional counts were filed. Appellant's motion to quash was sustained as to the second and overruled as to the first and third counts. A trial by jury resulted in a second conviction.
Errors have been assigned upon the overruling of appellant's motion to quash the first count of the affidavit, and also in allowing the same to be reinstated after it had been withdrawn by the State's attorney. The verdict was rested wholly upon the third count, as the record discloses, which amounted to an acquittal upon the first count, and hence these alleged errors were manifestly harmless. Knox v. State (1905), 164 Ind. 226, 108 Am. St. 291, 73 N.E. 255.
It is charged that the court erred in overruling appellant's motion to quash the third count of the affidavit. The statute forbids heavy hauling over any turnpike, macadam or gravel road, while the same is in a condition to be cut up and injured thereby. The third count charged appellant with hauling an excessive load over "a certain macadam road and gravel road in said county and State, known as road No. 1 of the J. D. Thompson gravel road system, running from the town of Owensville in said county west toward the Wabash river." It is contended that this count charges two offenses, to wit, hauling over a certain macadam road and a certain gravel road, and is accordingly bad for duplicity. This contention cannot be sustained. It appears clear to us that but one road is described, and but one offense charged; and as no other objection to the affidavit was suggested, we think the motion to quash was rightly overruled.
In the circuit court the prosecuting attorney withdrew the first count of the affidavit upon which appellant had been tried and convicted in the justice's court, whereupon appellant filed a plea of former jeopardy and asked to be discharged. His plea was overruled, and this ruling is assigned and urged as erroneous. We need not discuss the sufficiency of this plea, inasmuch as it is apparent that appellant could not have been harmed by the action of the court of which complaint is made, since the defense of former jeopardy was provable under a plea of not guilty. § 2069 Burns 1908, Acts 1905, p. 584, § 198; Williams v. State (1907), 169 Ind. 384, 82 N.E. 790.
The overruling of appellant's motion for a new trial has been assigned as error. The prosecuting witness, Thomas J. Boren, was permitted to testify that, two or three weeks before the date of the alleged offense for which appellant was on trial, he had warned him not to haul heavy loads over the improved roads, and complaint is made of this action. Boren was superintendent of the road in question, and if, after warning from him, appellant committed the offense of which he was accused, this fact was admissible as tending to show a wilful disregard of the law, and an aggravated offense justifying the assessment of a heavier penalty. The jury, however, assessed the lowest fine authorized under the law, so that if appellant was guilty under the evidence this item of testimony plainly did not harm appellant, even though it had been erroneously admitted.
Appellant was charged with having hauled an excessive load over the road on February 18, 1909; and in the motion for a new trial it is alleged that the court erred in permitting Thomas Emerson to testify as to the condition of the road in question on February 19, after having testified that rain had fallen on the night of February 18, that it was snowing on the morning of February 19, and that he had not been on this road on February 18. The record shows that the witness testified, without objection, that on February 19 he traveled over two miles of the road involved, and that water was then standing along the road. Appellant's counsel then stated that since the witness was not along the road on the date of the alleged offense he did not think the evidence was competent. No motion was made to strike out any part of the testimony given and no objection was made to the competency of any question propounded to this witness. In this state of the record, no question was saved for review by this court. Swygart v. Willard (1906), 166 Ind. 25, 76...
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