Post v. State
| Decision Date | 13 January 1926 |
| Docket Number | No. 24824.,24824. |
| Citation | 197 Ind. 193,150 N.E. 99 |
| Parties | POST v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Union Circuit Court; Cecil C. Tague, Judge.
Elmer E. Post was convicted of unlawfully giving away, furnishing, bartering, exchanging, and disposing of intoxicating liquor, and he appeals. Reversed, with directions for new trial.
Pigman & Roberts, of Liberty, and Wiles, Springer & Roots, of Connersville, for appellant.
Arthur L. Gilliom, Atty. Gen., and Arnet B. Cronk and Carl J. Wilde, both of Indianapolis, for the State.
Appellant was convicted on the charge that he “unlawfully gave away, furnished, bartered, exchanged, and otherwise disposed of intoxicating liquor.” Overruling his motions to quash the indictment and for a new trial are assigned as errors.
[1] The indictment was entitled “State of Indiana, Union County, SS.,” and recited that-
“The grand jurors of Union county, in the state of Indiana *** on their oaths present that one Elmer E. Post, late of said county, on the 20th day of November, A. D. 1923, at said county and state aforesaid, did then and there unlawfully give away, furnish barter, exchange and otherwise dispose of intoxicating liquor to person unknown to this grand jury and within the state of Indiana, contrary,” etc.
The motion to quash was for the alleged reasons that (1) the indictment does not state facts sufficient to constitute a public offense, and that (2) it fails to comply with the rules in criminal pleading. It is not clear just what was intended by the second proposition,but obviously what was stated is not a cause for quashing an indictment. Section 2065, Burns' 1914; section 194, c. 169, Acts 1905, p. 626.
[2] The indictment is not insufficient by reason of alleging in a single count that the defendant did each and all of several acts forbidden and made punishable by the same section of the statute. Lennard v. State, 191 Ind. 371, 372, 132 N. E. 677;Parker v. State (Ind. Sup.) 146 N. E. 327.
[3] The allegation that the acts charged were done “at said county and state aforesaid,” after having entitled the indictment as of the “State of Indiana, Union County,” and having recited that it was returned by the grand jury of “Union county, in the state of Indiana,” charged that such acts were done in Union county with sufficient certainty to give the Union circuit court jurisdiction of the cause; and the subsequent charge that they were done “within the state of Indiana” did not make the allegation as to venue uncertain or otherwise insufficient. Rivers v. State, 144 Ind. 16, 19, 42 N. E. 1021.
[4][5] The mere failure to put a comma between the words “furnish” and “barter” did not make the indictment insufficient even as to the charge that the defendant bartered intoxicating liquor and that he furnished it. It is an established rule that, where the meaning is clear, a mere mistake in grammar, spelling, or punctuation does not vitiate an indictment or affidavit. Bader v. State, 176 Ind. 268, 273, 94 N. E. 1009. But, in any event, such an omission could not effect the sufficiency of the charge that he unlawfully gave away, exchanged and otherwise disposed of intoxicating liquor. The court did not err in overruling the motion to quash the indictment.
There was evidence that the defendant and his son owned a garage in Liberty, Ind., in the rear of which was a vacant lot through which a way was open from the back door of the garage to a street beyond, the lot not being fenced; that on the 20th day of November, 1923, the sheriff, looking from the windows of her office in the courthouse a square away, watched the rear door of the garage all day, and that a deputy sheriff, from noon until the middle of the afternoon, watched the front door from a grocery store across the street; that defendant was seen by the sheriff to drive up to the garage at noon and go to a machine and take out a sack with something in it, but she could not tell what was in the sack; that she saw defendant out in the back lot, at the rear of his garage; that a deputy sheriff saw defendant at about 12 or 12:30 o'clock in the afternoon in the garage; that he watched the front part of the garage from about 12:30 o'clock up to about 3 o'clock and saw defendant there several different times; that there were about 25 cars out in the vacant lot behind the garage, part of which were abandoned, worthless cars, and some of which were being worked on at that time; that on the morning of that day a witness had been in defendant's garage when he walked to the back door and saw a man that he did not know take a jug from a sack in an automobile out in the back lot, take the stopper from the jug, and drink from it, and then...
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