McCloskey v. State

• Decision Date: 11 April 1944
• Docket Number: 27949.
• Citation: 53 N.E.2d 1012,222 Ind. 514
• Parties: McCLOSKEY v. STATE.
• Court: Indiana Supreme Court

53 N.E.2d 1012

222 Ind. 514

McCLOSKEY v. STATE.

No. 27949.

Supreme Court of Indiana

April 11, 1944

Appeal from Vigo Circuit Court; John W. Gerdink Judge.

Orph M. Hall, of Terre Haute, for appellant.

James A. Emmert, Atty. Gen., and Frank Hamilton and Frank Coughlin Deputy Attys. Gen., for appellee.

SWAIM Judge.

The appellant was convicted of cruelty to animals under § 10-205 Burns' 1933 (1942 Replacement), § 2863, Baldwin's 1934, which provides that '* * * whoever, having charge or custody of any animal, either as owner or otherwise inflicts needless cruelty upon the same, * * * or cruelly or unnecessarily fails to provide the same with proper food, drink, shelter or protection from the weather, shall, on conviction, be fined * * *.'

The affidavit on which appellant was tried and convicted stated that the appellant, on a specified date, in said county and state 'did then and there have charge and custody of certain dogs and did then and there unlawfully inflict needless cruelty upon said dogs by then and there unlawfully and cruelly confining said dogs in a vehicle which was not then and there of sufficient size to accommodate said dogs without overcrowding said dogs, as a result of which unlawful and cruel confinement said dogs were cruelly overcrowded, and the said Otto Franklin McCloskey did then and there unlawfully and cruelly fail and neglect to provide said dogs with food and water, as a result of which said unlawful and cruel overcrowding and said failure to provide said dogs with food and water, certian of said dogs became sick, and as a result of said overcrowding and said sickness three of said dogs then and there died, * * *.'

The appellant filed a motion to quash this affidavit on the statutory grounds. The action of the court in overruling this motion is the only alleged error presented by this appeal.

The appellant contends that the facts stated in the affidavit did not constitute a public offense for the reason that the affidavit failed to charge the offense in the language of the statute. Sec. 9-1105, Burns' 1933, (1942 Revision), § 2188, Baldwin's, 1934, expressly provides that 'Words used in the statute to define a public offense need not be strictly pursued, but other words conveying the same meaning may be used.'

Appellant insists that the use of the word 'without' in the first part of the affidavit in which it was stated that the appellant inflicted needless cruelty upon the dogs by 'unlawfully and cruelly confining said dogs in a vehicle which was not then and there of sufficient size to accommodate said dogs without overcrowding said dogs' makes this part of the charge uncertain because the word 'without' as used is 'a conjunction and joins two sentence or...