Neusbaum v. State

• Decision Date: 14 November 1967
• Docket Number: No. 30604,30604
• Citation: 249 Ind. 297,230 N.E.2d 772
• Parties: Carl NEUSBAUM, Appellant, v. The STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 772

230 N.E.2d 772

249 Ind. 297

Carl NEUSBAUM, Appellant, v. The STATE of Indiana, Appellee.

No. 30604.

Supreme Court of Indiana.

Nov. 14, 1967.

Rehearing Denied Dec. 22, 1967.

Lewis Davis, Indianapolis, for appellant.

Edwin K. Steers, Former Atty. Gen., of Indiana, John J. Dillion, Atty. Gen. of Indiana Carl E. Van Dorn, Asst. Atty. Gen., Indianapolis, for appellee.

LEWIS, Judge.

Appellant was charged by affidavit with violation of the 1935 Narcotics Act. The affidavit, omitting the formal parts thereof and signatures thereto, reads as follows, to-wit:

'BE IT REMEMBERED, That, on this day before me, Noble R. Pearcy, Prosecuting Attorney of the Nineteenth Judicial Circuit, personally came William Owen who, being duly sworn, upon his oath says that Carl Neusbaum on of about the 27th day of April, A.D. 1963, at and in the County of Marion in the State of Indiana, did then and there unlawfully and feloniously have in his possession and under his control a narcotic drug: to-wit: 200--1 grain tablets Codeine Sulphate, with the intent to sell said narcotic drug to one PAUL J. RAY, when he the said Carl Neusbaum was not authorized by any law of the United States of America or the State of Indiana to have such narcotic drug in his possession and under his control and was not then and there authorized to sell such narcotic drug.

'That the said Carl Neusbaum has been heretofore convicted of the offense of purchasing, selling, dispensing and distributing narcotic drugs in violation of the laws of the United States of America such conviction being on the 7th day of January, 1955, Cause Number 9939 and I.P. 55--Cr.--3, United States District Court for the Southern District of Indiana, Indianapolis Division, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.

'The affiant aforesaid, upon his oath aforesaid, further says that the defendant Carl Neusbaum on or about the 27th day of April, 1963, at and in the County of Marion in the State of Indiana, did then and there unlawfully and feloniously have in his possession and under his control a narcotic drug: to-wit: 1 grain tablets Codeine Sulphate, with the intent to sell said narcotic drug, and did then and there unlawfully and feloniously attempt to sell said narcotic drug to one PAUL J. RAY, when he the said Carl Neusbaum was not authorized by any law of United States of America or the State of Indiana to have such narcotic drug in his possession and under his control and was not then and there authorized to sell such narcotic drug, then and there being * * *.'

On October 25th, 1963, appellant waived arraignment and entered a plea of not guilty.

Thereafter, trial was had by jury resulting in appellant's conviction--the jury verdict reading as follows:

'We, the jury, find the defendant Carl Neusbaum, guilty of violation of the 1935 Narcotic Act as charged in count One (1) of the Affidavit and that his age is not determined from evidence and that he be fined $2,500.00 and that he be imprisoned for not less than Twenty (20) years nor more than Life.'

After pre-sentence investigation, the Court imposed a prison term of 20-years-to-life and sentenced the appellant to the Indiana State Prison.

Appellant's motion for a new trial contained the following grounds:

'1. That the verdict of the jury is not sustained by sufficient evidence.

'2. That the verdict of the jury is contrary to law.

'3. Error of law occurring at the trial in this:

'That the Court erred in overruling of the defendant's motion for a directed verdict made at the end of all the evidence based upon the failure of the State to pvove the defendant's guilt of the crime charged beyond a reasonable doubt.'

Witness Paul J. Ray testified that he knew the appellant and also one Ruby Minton; that he had talked with Minton about purchasing drugs and had made arrangements to meet Minton and the appellant on the day after his conversation on a street in the City of Indianapolis.

Ray then reported to the Indianapolis Police Department concerning his conversation with Minton and appellant. The Police Department advised Witness Ray to go...