Meno v. State

• Decision Date: 18 January 1924
• Docket Number: No. 24339.,24339.
• Citation: 142 N.E. 382
• Parties: MENO v. STATE.
• Court: Indiana Supreme Court

142 N.E. 382

MENO

v.STATE.

No. 24339.^*

Supreme Court of Indiana.

Jan. 18, 1924.

Appeal from Circuit Court, Washington County; James Tucker, Judge.

Thomas Meno was convicted of manufacturing, transporting, and possessing intoxicating liquor, of keeping liquor with intent to sell, of the unlawful possession of a still, and of maintaining a liquor nuisance, and he appeals. Affirmed.Robt. L. Mellen and Logan R. Browning, both of Bedford, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward F. White, Deputy Atty. Gen., for the State.

TRAVIS, J.

This was a prosecution based upon an affidavit in four counts. The first and fourth counts charged, as to the first count, the unlawful manufacture, transportation, and possession of intoxicating liquor, the keeping intoxicating liquor with intent to sell, barter, give away, furnish, exchange, and otherwise dispose of the same; and, as to the fourth count, the unlawful possession of a certain still, devise, and property for the manufacture of intoxicating liquor intended for use in violation of the laws of this state, in violation of amended section 4; the second count charged the violation of section 15; the third count charged the unlawful maintaining and assisting in maintaining a common nuisance, a room, house, etc., where intoxicating liquors were unlawfully sold, bartered, given away, manufactured, and delivered, and where persons were permitted to resort for the purpose of drinking such intoxicating liquors, and that intoxicating liquors were kept in such house and room, and did use the same in maintaining such place, in violation of section 20 of the Prohibition Law, Acts 1921, p. 736, section 8356d, Burns' Supp. 1921, Acts 1917, p. 16, section 8356 o Burns' Supp. 1921, and Acts 1917, p. 25, section 8356t, Burns' Supp. 1921, respectively.

Count 2, which charged the unlawful possession of intoxicating liquor received from a carrier in this state, was dismissed after the close of the evidence and before the argument to the jury was commenced. The jury returned a general verdict of guilty, by which it fixed appellant's punishment at a fine of $500, and that he be imprisoned in the penal farm for 180 days, from which appellant appeals.

The errors assigned and which are relied upon to reverse the judgment are: (a) Overruling appellant's separate and several motions to quash each count of the affidavit; (b) overruling the motion for a new trial; (c) overruling motion in arrest of judgment.

The causes for a new trial which are relied upon in appellant's brief are: (a) The verdict is not sustained by sufficient evidence; (b) the verdict is contrary to law; (c) error in the admission of, and refusal to exclude, evidence; (d) error in giving instructions.

The scene of this action lies in the village of Reed's Station, Lawrence county, in the small dwelling, the barn, and outbuildings situate therein, where the illicit intoxicating liquor and part of a still were found. The chief of police of Bedford, sheriff, and federal prohibition officer, armed with a search warrant, on a Sunday afternoon went to the premises named. They found the ground floor front room of the dwelling was used for a dry beer saloon, which was fitted with a bar, drinking glasses, cash register, and a stock of pop and dry beer in cases. A part of the second floor was used for gambling rooms. At the time of arrival of the officers they found appellant with several men in an upstairs room, some of whom were playing poker. One of the officers informed appellant and the others that they had a search warrant for the search of the premises, to which statement appellant replied, “All right, go right on. There is nothing about here, go right on, and search all you want to,” and replied in answer as to whether he had charge of the premises, “I have.” Appellant then proceeded with the officers in making the search, in the course of which 21 gallons of intoxicating liquor were found in bottles and jugs. Six or eight bottles were found in a woodpile in the cellar of the house. One quart bottle of the liquor was found in a room adjoining the barroom under a bed mattress. Some was found in an outbuilding used as a chicken house, and some was found under a manger in the barn, which was a part of the premises. Appellant's father had been sleeping in one of the rooms of the dwelling, and in answer to a question as to who owned the liquor appellant said the liquor was his father's, but before the conversation was completed stated that the liquor belonged to him. The officers also found a part of a still, a copper lid to a boiler, and a small copper coil in a closet under the stairway. Some of the liquor with the containers, and the return to the search warrant, together with the certified copies of the records of the Lawrence circuit court and city court of Bedford of former convictions of appellant for violation of the Prohibition Law, were admitted over the objection of appellant.

Appellant's motion to quash the several counts of the affidavit, for the reasons that they are defective in “not defining the offenses more particularly,” and that “no acts of appellant are described,” describing how he committed the offense, and “that several distinct offenses are charged with no particular facts alleged,” was correctly overruled.

[1] The charge that defendant unlawfully kept the intoxicating liquor with intent to sell, barter, give away, furnish, exchange, and otherwise dispose of it is a sufficient description of his acts in violation of the law, and with such particularity that a finding or verdict of guilty of the offense will support a judgment. Lipschitz v. State, 176 Ind. 673, 96 N. E. 945.

[2] The objection that no acts of appellant are described showing how he committed the offense cannot be sustained, for the reason that so holding would be to hold it necessary to plead evidentiary facts. The ultimate facts are all that are required in pleading an offense.

[3] The objection that several distinct offenses are charged in count 1 is not well taken. It has been held that a count of affidavit which charges an offense is not erroneous, because it charges two or more distinct acts in violation of the statute, which acts are designated therein. Bishop's New Criminal Law, § 436; Lennard v. State (Ind. Sup.) 132 N. E. 677;Howard v. State (Ind. Sup.) 131 N. E. 403.

[4] Objection is made that the third count, which charges the maintenance of a common nuisance, does not designate the place and describe the location of the alleged nuisance with certainty. “Place,” as contemplated by appellant in his objection, is not the essence of the offense. To allege the commission thereof as having taken place in the county is sufficient. Donovan v. State, 170 Ind. 123, 83 N. E. 744.

Finally, appellant says that his motion to quash ought to have been sustained, because section 20 and that part of amended section 4 which makes it an offense to have or possess any still for the manufacture of liquor intended for use in violation of the laws are unconstitutional.

[5][6] Appellant does not challenge the constitutionality of that part of section 4 of the Prohibition Law enacted in 1917, re-enacted by amended section 4, so that a verdict of guilty of unlawfully keeping such intoxicating liquor with intent, etc., would be valid. It is to be remembered that the verdict was general. Under a prosecution for violation of sections 4 and 20, a judgment on a general verdict of guilty is not erroneous (Barksdale v. State, 189 Ind. 170, 125 N. E. 515), and where the affidavit, as in this case, charges two or more offenses, a general verdict of guilty will be construed as being upon the offense proved, where only one was so proved (James v. State, 190 Ind. 629, 130 N. E. 115). There was ample evidence to prove appellant guilty of unlawfully keeping intoxicating liquor with intent to sell the same.

Appellant is charged with three offenses in three separate counts. If it be granted that two of the counts were based upon statutes or parts of statutes that are unconstitutional, and that one count stated an offense, in considering alleged error in overruling the motion to quash the affidavit it will be presumed that the general verdict of guilty is based upon the good count of the affidavit. Stucker v. State, 171 Ind. 441, 84 N. E. 971;Wallace v. State, 189 Ind. 562, 128 N. E. 604;Walker v. State (No. 24287), 142 N. E. 16, this term; Barksdale v. State, supra.

The conviction in this case can be upheld, in so far as it is necessary that it be based upon a good count of the affidavit, for the first count charging the keeping, etc. with intent, etc., was good as against the motion to quash. It follows, considering alleged error at the trial, and the verdict being general, that the verdict was a conviction upon the good count only. So, it being possible to decide this case upon other than constitutional grounds, the court will not consider the constitutional questions.

[7] It may be stated as a general rule that appellate courts will not decide constitutional questions when the case under consideration can be disposed of upon other grounds. Regadanz v. State, 171 Ind. 387, 393, 86 N. E. 449;McElwaine-Richards Co. v. Wall, 166 Ind. 267, 76 N. E. 408;White v. Sun Pub. Co., 164 Ind. 426, 73 N. E. 890; Chicago Ry. Co. v. Railroad Com., 39 Ind. App. 358, 79 N. E. 927.

The judgment being upheld upon the count held good, and to which no constitutional question is raised, there is no imperative necessity that the constitutional questions be considered in order to decide the case at bar. Grand Lodge v. Clark, 189 Ind. 373, 127 N. E. 280;Poer v. State, 188 Ind. 55, 121 N. E. 83;Hunt v. State, 186 Ind. 644, 117 N. E. 856;School City v. Harrison Twp., 184 Ind. 742, 112 N. E. 514;Shafer v. Shafer, 181 Ind. 244, 104 N. E. 507.

[8] It is alleged that the verdict was not sustained by sufficient evidence, for the reason that all the evidence to sustain the...