McDaniel v. State
| Decision Date | 30 October 1925 |
| Docket Number | 24,343 |
| Citation | 149 N.E. 161,196 Ind. 654 |
| Parties | McDaniel v. State of Indiana |
| Court | Indiana Supreme Court |
1. INTOXICATING LIQUORS.---Affidavit charging transportation as a misdemeanor held sufficient.---An affidavit charging that accused "did then and there unlawfully transport certain intoxicating liquor in a certain automobile," etc sufficiently charged transportation as a misdemeanor, under Acts 1921 p. 736, 1. p. 656.
2. INTOXICATING LIQUORS.---In charging unlawful transportation it is not necessary to negative exceptions.---In charging the offense of transportation under Acts 1921 p. 736, 1, and Acts 1917, ch. 4, p. 15, of which it is an amendment, it is not necessary to negative the exceptions found in subsequent sections of the statute; it is enough to charge that the act was done "unlawfully," the exceptions being a matter of defense. p. 656.
3. INTOXICATING LIQUORS.---Mere possession of liquor was not an offense in December, 1922.---A count of an affidavit charging the unlawful possession of intoxicating liquor on December 26, 1922, did not charge a public offense and should have been quashed on motion, as mere possession of liquor was not an offense at that time. p. 656.
4 INDICTMENT.---A count of an affidavit reciting a former conviction does not state an offense.---A count of an affidavit charging a violation of the prohibition law which does not allege that defendant had done any act in violation of law, but charged a previous conviction as appearing from a designated page of the records of the court, does not state a public offense and should have been quashed on motion. p 656.
5. CRIMINAL LAW.---The repeal of a penal statute does not affect the right to prosecute thereunder to final judgment.---The fact that a statute under which a prosecution was begun was superseded by a later act, does not affect the right to prosecute the action to final judgment. p. 657.
6. CRIMINAL LAW.---Verdict of guilty on each of three counts will not sustain a conviction, one only of the counts being good.---A verdict of the jury being general, finding defendant guilty on each of three counts, two of which should have been quashed on motion, will not sustain a conviction p. 657.
From Vanderburgh Circuit Court; W. C. Welborn, Special Judge.
Chester McDaniel was convicted of a violation of the prohibition law, and he appeals.
Affirmed.
W. D. Hardy, for appellant.
U. S. Lesh, Attorney-General, and Mrs. Edward Franklin White, Deputy Attorney-General, for the State.
An affidavit in three counts was filed against appellant, on which this prosecution was based. He filed a motion to quash each count for the alleged reason that neither count stated facts sufficient to constitute a public offense. The motion was overruled and defendant excepted, after which he was tried by a jury and found "guilty of violating the liquor law as charged in the affidavit and each count thereof," and judgment was rendered that he be fined $ 500 and imprisoned four months at the state farm, that the liquor and utensils seized should be destroyed, and the automobile forfeited to the State of Indiana.
The second count of the affidavit alleged that on December 26 1922, at Vanderburgh county, State of Indiana, the defendant "did then and there unlawfully transport certain intoxicating liquor in a certain automobile," etc. The time named was before the unlawful transportation of such liquor in an automobile was made a felony, and when § 1, ch. 250, Acts 1921 p. 736, making any transportation thereof a misdemeanor was the only statute in force forbidding the transportation of liquor. That statute declares it to be "unlawful for any person to manufacture, transport * * * furnish or otherwise dispose of any intoxicating liquor * * * except as in this act provided," etc. Other sections of the same act, and of ch. 4, Acts 1917 p. 15, of which it is an amendment, contain a number of exceptions, where the manufacture, sale or transportation of intoxicating liquor for certain purposes and under certain circumstances is not made unlawful. But in charging an offense thereunder it is enough to allege that the act charged was "unlawfully" done, without undertaking to negative any of these exceptions, the fact that the defendant was within an exception being matter of defense. Stapert v. State (1924), 195 Ind. 338, 143 N.E. 587; Asher v. State (1924), 194 Ind. 553, 557, 142 N.E. 407. The second count of the affidavit sufficiently charged a public offense, and the motion to quash it was properly overruled. Berry v. State (1925), ante 258, 148 N.E. 143; Asher v. State, supra; Lowery v. State (1925), ante 316, 148 N.E. 197. But...
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