Mahok v. State
| Citation | 174 N.E. 281,202 Ind. 473 |
| Decision Date | 20 January 1931 |
| Docket Number | No. 25743.,25743. |
| Parties | MAHOK v. STATE. |
| Court | Supreme Court of Indiana |
OPINION TEXT STARTS HERE
Appeal from Criminal Court, Lake County; Martin J. Smith, Judge.
George Mahok was convicted of possessing intoxicating liquor, and two prior convictions, and he appeals.
Affirmed.
Herman Key and W. O. Thomas, both of Gary, for appellant.
James M. Ogden, Atty. Gen., and V. Ed Funk, Deputy Atty. Gen., for the State.
Appellant was charged with possessing intoxicating liquor, and that he had theretofore been twice convicted of offenses defined by section 4, chapter 48, Acts 1925, section 2717, Burns' Ann. St. 1926. The finding was guilty as charged, and judgment was imprisonment in the Indiana State Prison for not less than one nor more than two years.
Error is assigned upon the overruling of motion for a new trial, for the causes that (1) the finding of the court is contrary to law and (2) the finding of the court is not sustained by sufficient evidence.
Under the first cause for this reason for a new trial appellant proposes that, because the charge against him is “that he did then and there unlawfully possess intoxicating liquor,” and that he had theretofore been twice convicted of violating the same section of the statute, he was charged with a misdemeanor including previous convictions, and he could be found guilty only of a misdemeanor, and not guilty of committing a felony. The point made is that it is not alleged in the charge of the offense that appellant did feloniously possess intoxicating liquor.
[1][2][3] The finding of the trial court is: “The defendant (appellant) is guilty as charged, that he is fifty-three years of age, that he be imprisoned at the Indiana State Prison for a period of not less than one nor more than two years.” The trial of this case was submitted to the court. Section 2299, Burns' Ann. St. 1926. The form and substance of the court's finding is controlled by statute law. Subject to exceptions, a verdict or finding must state the amount of fine and the imprisonment to be inflicted. Section 2315, Burns' Ann. St. 1926. The defendant being over the age of thirty years, the court or jury trying the cause is limited in the finding to two facts: the age of the defendant, and whether he is guilty of the offense charged. Upon such a finding or verdict, it is the province of the court to pronounce sentence, which is the judgment. Section 2317, Burns' Ann. St. 1926. From the statute it follows that all of the court's findings, except the finding of the age of the defendant, and that he is guilty as charged, is surplusage and of no effect in law. The finding being simply “guilty as charged,” it does not follow that the effect of the finding is that appellant is guilty of a felony, unless in law a felony be charged by the affidavit. The only action by the court, which could be said determines the charge was for the commission of a felony instead of a misdemeanor, is the judgment that appellant be committed to the Indiana State Prison. Section 2027, Burns' Ann. St. 1926; section 2717, Burns' Ann. St. 1926. Appellant did not move to modify the judgment below. He may not present the question for the first time on appeal. Goodman et al. v. State (1919) 188 Ind. 70, 121 N. E. 826;Cheek v. State (1908) 171 Ind. 98, 85 N. E. 779. The finding and judgment is sustained as against the proposition presented.
[4][5] Appellee also contends that, because appellant did not move to quash the charge, he waived his right to present “such defect” on appeal. Appellant admits that the charge does present an unlawful misdemeanor, but argues that it does not present a felonious offense, the effect of the finding being that appellant is guilty of an offense which is not charged. This raises the question: Does the cause for a new trial, “the finding of the Court is contrary to law” (section 2325, Burns' Ann. St. 1926, Acts 1905, c. 169, page 584, § 282), include the proposition that the finding of guilty is for a crime not charged by the indictment? It seems obvious that a finding that a party is guilty of a crime with which he is not charged is not lawful, therefore such a finding is unlawful-contrary to law. The error, if it be one, is properly presented by the motion for a new trial for the cause that “the finding of the court is contrary to law.” McGuire v. State (1875) 50 Ind. 284;Thetge v. State (1882) 83 Ind. 126. Appellant's proposition that the affidavit by which the offense is charged did not allege that the act was feloniously committed, and thereby only a misdemeanor was charged, and under this the finding of the court that he be committed to the Indiana State Prison was contrary to law, cannot be sustained. Upon motions to quash for the reason that the indictments did not charge that the act was feloniously done, it has been held that the several indictments or affidavits were sufficient to charge a felony. The proposition on the point in those cases is analogous to appellant's proposition here. It is held that the affidavit in the case at bar was sufficient to charge a felony, and the finding of the court is not contrary to law. Evans v. State (1926) 198 Ind. 487, 154 N. E. 280;Simpson v. State (1925) 197 Ind. 77, 149 N. E. 53;McDaniel v. State (1926) 197 Ind. 179, 150 N. E. 50;Simpson v. State (1925) 195 Ind. 633, 146 N. E. 747.
[6][7] Under the second cause for a new trial, that the evidence is not sufficient to support the finding of guilty, appellant's proposition is that the possession by the wife of appellant, even though in the family home, the husband being absent from the home, is not in the husband. The evidence is that two police officers went to the home of appell...
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