Miller v. State

• Decision Date: 11 May 1923
• Docket Number: No. 24172.,24172.
• Citation: 193 Ind. 216,139 N.E. 306
• Parties: MILLER v. STATE.
• Court: Indiana Supreme Court

193 Ind. 216

139 N.E. 306

MILLER

v.STATE.

No. 24172.

Supreme Court of Indiana.

May 11, 1923.

Appeal from Circuit Court, Jasper County; Moses Leopold, Special Judge.

Job M. Miller was convicted of keeping intoxicating liquor with intent to sell, and he appeals. Affirmed.

See, also, 134 N. E. 866.

John A. Dunlap and E. M. La Rue, both of Rensselaer, for appellant.

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

MYERS, J.

Appellant, in the court below, was tried before a jury and convicted of keeping intoxicating liquor with the intent to sell, in violation of section 4, Acts 1917, p. 15. The charge was preferred by affidavit. The errors assigned and not waived are the overruling of appellant's motion to quash the affidavit and the overruling of his motion for a new trial.

[1] The reasons assigned in support of the motion to quash are that the affidavit fails to state facts sufficient to constitute a public offense, and that it fails to state the offense with sufficient certainty. The last one of these, or want of certainty, is the alleged defect in the affidavit especially urged by appellant in this court. He cites the case of Regadanz v. State, 171 Ind. 387, 86 N. E. 449, where an affidavit was held bad for uncertainty upon the ground that it cast upon the opposite party the burden of correctly interpreting doubtful or uncertain allegations essential in charging the offense. The affidavit in the instant case is not subject to the criticism which was vital to the affidavit in the case cited. It is true, a criminal pleading cannot rest on assumptions or recitals as to matters essential to the gravamen of the charge; but, when they are stated with such certainty as will enable the court and jury to distinctly understand the issue to be tried and determined, and will apprise the defendant of the nature and character of the charge against him, as well as the evidence clearly admissible thereunder, and will enable the court to render judgment upon a conviction according to the rights of the case, the affidavit or indictment will be sustained as against a motion to quash for uncertainty. Williams v. State, 188 Ind. 283, 297, 123 N. E. 209;Mayhew v. State, 189 Ind. 545, 128 N. E. 599;Agar v. State, 176 Ind. 234, 244, 94 N. E. 819;State v. Metsker, 169 Ind. 555, 83 N. E. 241.

[2] Omitting the formal parts, the affidavit here in question follows:

“Job M. Miller did then and there unlawfully keep intoxicating liquor to wit, whisky and grain alcohol, with intent then and there to sell *** and otherwise dispose of the same to persons to this affiant unknown within this state, he, the said Job M. Miller, not then and there being a licensed pharmacist, wholesale druggist, manufacturing chemist, nor was he then and there in possession of such liquor for or in behalf of a public hospital, contrary,” etc.

All that part of the affidavit following the statement “to this affiant unknown within this state” formed no part of the...