Papa v. State

• Decision Date: 05 April 1929
• Docket Number: No. 13716.,13716.
• Citation: 89 Ind.App. 117,165 N.E. 773
• Parties: PAPA v. STATE.
• Court: Indiana Appellate Court

89 Ind.App. 117

165 N.E. 773

PAPA

v.STATE.

No. 13716.

Appellate Court of Indiana, in Banc.

April 5, 1929.

Appeal from Superior Court, Elkhart County; William B. Hile, Judge.

Robert Papa was convicted of liquor law violation, and he appeals. Affirmed.

Robert E. Proctor, of Elkhart, for appellant.

James M. Ogden, Atty. Gen., and Merl M. Wall, Deputy Atty. Gen., for the State.

NICHOLS, J.

Appellant and another were prosecuted jointly upon an affidavit in two counts, each count alleging a violation of the liquor laws of the state. The first count charged that appellant did unlawfully purchase, receive, manufacture, transport, ship, possess, sell, barter, exchange, give away, furnish, and otherwise handle and dispose of intoxicating liquor; the second count charged appellant with maintaining a liquor nuisance.

Appellant entered a plea of not guilty to both counts, was tried by a jury, found guilty on the first count, and sentenced to pay a fine of $100 and to 30 days in the county jail, and was found not guilty on the second count. From the judgment on the verdict, this appeal.

[1][2] The errors assigned are overruling appellant's verified motion to quash the affidavit on which the search warrant was issued, the search warrant and the return thereon, and to suppress all evidence secured thereby; and overruling his motion for a new trial. The first error which appellant attempts to present is not properly assigned, and no question is therefore presented. Such an alleged error must be specified as a cause for a new trial. Chappelle v. State, 196 Ind. 640, 149 N. E. 163. Appellant has attempted to present error in certain instructions by having the original bill of exceptions containing the instructions certified to this court as a part of the record, instead of having the same copied therein. The instructions cannot so be brought into the record, and no question is therefore presented as to the instructions. Mitchell v. Beissenherz, 192 Ind. 587, 135 N. E. 885.

[3] The evidence shows that John Dickey and Walter Aiken, police officers of the city of Elkhart, went to the Sunnyside pool room conducted by appellant at No. 611 Harrison street, on March 12, 1928; that appellant was there, and Dickey asked him if he could get a half pint of moonshine whisky; that appellant said, “yes,” and wrote a few words, possibly in Italian, on a small piece of paper, which he gave to Dickey and directed him to the house just back of the pool room on the same...