Newbauer v. State
| Decision Date | 29 May 1928 |
| Docket Number | 25,180 |
| Citation | 161 N.E. 826,200 Ind. 118 |
| Parties | Newbauer v. State of Indiana |
| Court | Indiana Supreme Court |
1. INDICTMENT AND AFFIDAVIT---Motion to Quash---What Reaches.---A motion to quash an indictment or affidavit reaches only matters apparent on the face thereof. p. 119.
2. INDICTMENT AND AFFIDAVIT---Motion to Quash---Deputy Prosecutor Acted as Notary.---A motion to quash an affidavit on the ground that the notary public before whom it was subscribed and sworn was a deputy prosecuting attorney and therefore, not authorized to act as a notary public, was properly overruled, as the objection did not appear on the face of the affidavit. p. 119.
3. STATUTES---Conflict---Later Enactment Prevails.---Should there be an irreconcilable conflict between two statutes, a later expression of the legislature will prevail against a former one. p. 122.
4. STATUTES---Passed at Same Session---Irreconcilable Conflict---Last Approved Prevails.---When two acts are passed at the same session of the legislature, the presumption is strong against implied repeal, and effect must be given to each if possible; but, if the two are irreconcilable, the one which was approved last will prevail. p. 122.
5. STATUTES---Inconsistent Statutes---Later Prevails---Regardless of Time of Taking Effect.---Generally the later of two inconsistent statutes will prevail although the prior one is not to take effect until a time subsequent to the passage and taking effect of the later one. p. 122.
6. INTOXICATING LIQUORS---Operating Motor Vehicle while Intoxicated---Section of Prohibition Law Repealed.---Section 9 of the Prohibition Law of 1925 (2725 Burns 1926), providing that any person operating a motor vehicle or motorcycle upon any public highway of the state, while under the influence of intoxicating liquor, shall be guilty of a misdemeanor, and fixing a penalty therefor, being inconsistent with the section of the automobile regulation law on the same subject (10141 Burns 1926), was repealed by the latter section, as it was approved at a later date. p. 122.
7. CRIMINAL LAW---Operating Motor Vehicle While Intoxicated---Repeal of Statute---Instruction Held Erroneous.---Section 9 of the Prohibition Law of 1925 (2725 Burns 1926), making it a misdemeanor to operate a motor vehicle or motorcycle over a highway of this state while intoxicated, being inconsistent with the section of the automobile regulation law on the same subject and which was subsequently approved, and, therefore, repealed by the latter, the giving of an instruction predicated on the section of the former law in a prosecution for such offense constituted reversible error. p. 122.
8. CRIMINAL LAW---Immaterial Evidence---Usually Harmless.---The admission of immaterial evidence will be treated as harmless unless it is made to appear that the defendant was probably injured thereby in some material respect. p 123.
9. CRIMINAL LAW---Admission of Testimony---Review on Appeal.---Testimony to which no objections were made or exceptions taken will not be reviewed on appeal. p. 123.
10. CRIMINAL LAW.---Exclusion of testimony which had already been given is not error. p. 123.
From DeKalb Circuit Court; William P. Endicott, Judge.
John Newbauer was convicted of operating an automobile on a public highway while under the influence of intoxicating liquor, and he appeals.
Reversed.
Richard W. Sharpless and W. W. Sharpless, for appellant.
Arthur L. Gilliom, Attorney-General, and Harry L. Gause, Deputy Attorney-General, for the State.
OPINION
Appellant was charged by affidavit with driving an automobile upon a public highway while under the influence of intoxicating liquor, in DeKalb County, on November 1, 1925. He was found guilty by a jury. Judgment of fine and imprisonment in the county jail was rendered on the verdict.
The first assignment of error is that the court erred in overruling the defendant's motion to quash the affidavit. The motion to quash stated that the affidavit was not verified, as it was subscribed and sworn to before Charles S. Smith, notary public, and that, at the time, he was a deputy prosecuting attorney and was not authorized to act as a notary public. It is well settled that motions to quash indictments and affidavits only reach matters apparent on the face thereof. The objection to the affidavit in this case did not appear upon its face. Davy v. State (1923), 192 Ind. 604, 137 N.E. 553. The overruling of the motion to quash was not erroneous.
The second and third assignments of error are not proper assignments; but are reasons for a new trial and are also presented in that manner.
The fourth assignment of error is that the court erred in overruling the motion for a new trial. One of the causes relied upon was that the court erred in giving to the jury of its own motion instruction No. 3. This instruction was as follows: "
Said § 9 stated to the jury in this instruction was a part of chapter 48 of the acts of 1925 (§ 2725 Burns 1926) which was an act concerning intoxicating liquors. This act was approved on March 4, 1925. It did not have an emergency clause. The acts of that session, not otherwise provided for, went into effect by proclamation of the Governor, on April 25, 1925. The subjectmatter of this prosecution was also covered by § 40, of chapter 213, of the acts of 1925 (§ 10141 Burns 1926), which was an act concerning automobile regulation. Section 40 reads as follows: "Any person who shall drive or operate a motor vehicle or motor bicycle on any highway of this state while under the influence of intoxicating liquor or narcotic drugs, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall, for a first offense, be punished by a fine of not to exceed five hundred dollars ($ 500.00), to which may be added imprisonment for a term of not less than ten (10) days and not more than six (6) months; and for a second or other subsequent offense, such person shall be deemed guilty of a felony, and, upon conviction thereof, shall be punished by imprisonment for a term of not less than one (1) year and not more than five (5) years." This act was approved March 14, 1925, and, with the exception of one section, which was not the section under consideration, was in full force and effect from and after its approval, as an emergency was declared therein.
There is not anything in the latter act which directly repeals § 9 of the former act. However, there is a conflict in the penalty prescribed for the same misdemeanor in the two acts. In the prohibition act, it is provided that to the fine shall be added imprisonment in the county jail or at the Indiana state farm, for not less than thirty days, nor more than six months, while in the automobile regulation act, it is provided that to the fine may be added imprisonment for a term of not less than ten days and not more than six months. The two sections, relating to the same subject and enacted for the same purpose, are repugnant to each other. In 1 Lewis, Sutherland Statutory Construction § 247, it is said: ...
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