Patton v. State

• Decision Date: 21 June 1922
• Docket Number: 23,930
• Citation: 135 N.E. 795,192 Ind. 632
• Parties: Patton v. State of Indiana
• Court: Indiana Supreme Court

135 N.E. 795

192 Ind. 632

Patton v. State of Indiana

No. 23,930

Supreme Court of Indiana

June 21, 1922

Rehearing Denied January 10, 1923.

From Marion Criminal Court (51,154); James A. Collins, Judge.

Prosecution by the State of Indiana against Clarence Patton. From a judgment of conviction, the defendant appeals.

Reversed.

Asa H Boulden and Robbins & Weyl, for appellant.

U. S Lesh, Attorney-General, and Mrs. Edward Franklin White, for the state.

OPINION

Ewbank, J.

Appellant was convicted of having violated the Prohibition Law of Indiana by making intoxicating liquor, keeping such liquor in his possession with intent to sell and otherwise dispose of it to persons unknown, and maintaining a nuisance by keeping a room where such liquors were so kept for sale. Each of the three counts of the affidavit on which he was convicted further alleged that twice before, on dates named, appellant had been convicted of violating the provisions of the Prohibition Law, therein described. The affidavit was sworn to before the prosecuting attorney, who certified that fact, but without dating his certificate or affixing his seal. The record shows that it was filed in the city court fifteen days after the date on which it alleged, and the evidence tended to show, the offense was committed. The jury returned a verdict in four paragraphs, the first three of which were exactly alike, except that each referred to a separate count (the first, second and third, respectively of the affidavit), and each found the appellant guilty as charged in a designated count, and that he be fined $ 100 and "imprisoned in the jail--Indiana State Farm for a period of 60 days--months." A fourth paragraph of the verdict recited that the jury found appellant "guilty of the third conviction of violating the provisions of the prohibition law, as charged in the affidavit, and that he be fined in the sum of $ 250 (not less than $ 250 nor more than $ 500) and imprisoned in the county jail or Indiana State Farm for three months (not less than 3 months nor more than 1 year)." Each of said four paragraphs of the verdict was separately signed by the foreman.

Appellant filed a motion for a venire de novo, alleging that the verdict and each paragraph of it was so uncertain and defective that judgment could not be rendered upon it, which motion was overruled and he excepted. He then filed his motion for a new trial, alleging, among other causes, that certain errors were committed in giving and refusing instructions, and that the verdict was contrary to law. That motion was overruled and he excepted. The court rendered judgment that appellant, "make his fine to the State of Indiana in the penal sum of $ 100, that he be imprisoned in the Indiana State Farm for a term of sixty days, and that he pay and satisfy all the costs and charges herein as to each count, two and three of the affidavit." To this judgment and sentence the court added the following: "And it is further ordered and adjudged by the court that the defendant upon the verdict of the jury as to the third conviction be fined in the sum of $ 250, that he be imprisoned on the Indiana State Farm for a term of ninety days, and that he pay all the costs and charges herein."

Appellant filed a motion to modify the judgment, because of alleged defects in the jurat to the affidavit, and further to modify it--"by eliminating and expunging from the judgment rendered by the court upon the fourth or general verdict * * * both the fine assessed and the imprisonment adjudged * * * for the reason * * * (that it) is not upon a valid verdict finding the defendant guilty of any crime." The motion was overruled, and appellant excepted. Appellant filed a motion in arrest of judgment which was overruled and he excepted. Each of the above rulings has been assigned as error.

The motion in arrest of judgment seems to have been filed after final judgment had been rendered. If so, it came too late. Smith v. State, ex rel. (1894), 140 Ind. 340, 36 N.E. 708; Id. (1894), 140 Ind. 343, 350, 39 N.E. 1060; Ewbank's Manual (2d ed.) § 116c; Ewbank, Criminal Law § 586. Moreover, it was not based on the insufficiency of the facts stated in the affidavit to constitute a public offense, nor on a claim that the offense charged was not within the jurisdiction of the court. Pittsburgh, etc., R. Co. v. State (1912), 178 Ind. 498, 501, 99 N.E. 801; Ewbank, Criminal Law §§ 586, 663.

The failure of the prosecuting attorney before whom the affidavit was sworn to date his jurat was not a fatal defect. Ross v. State (1893), 9 Ind.App. 35, 36, 37, 36 N.E. 167. Neither was the omission of his seal. Roberts v. State (1921), 190 Ind. 232, 130 N.E. 125, 126.

Construed in connection with the statute (§ 8356d Burns' Supp 1921, Acts 1917 p. 15, § 4) which forbids any person to manufacture, sell or otherwise dispose of, or keep with intent to sell or dispose of, any intoxicating liquor, under penalty of a fine of not less than $ 100 nor more than $ 500 and imprisonment for not less than thirty days nor more than six months for a first offense, or a fine of not less than $ 200 nor more than $ 500 and imprisonment for not less than sixty days nor more than six months for each subsequent offense, and (§ 8356t Burns' Supp. 1921, Acts 1917 p. 15, § 20), which forbids keeping a room in which intoxicating liquor is kept for sale, etc., under penalty of a fine of not less than $ 100 nor more than $ 500, and imprisonment for not less than thirty days nor more than six months, and also in connection with the statute (§ 9926h Burns' Supp. 1921, Acts 1919 p. 81) which requires that persons sentenced to a term of imprisonment of more than thirty days for a misdemeanor shall be imprisoned at the Indiana State Farm, the first part of the verdict was...