Scheerer v. State, No. 24891.

• Docket Nº: No. 24891.
• Citation: 197 Ind. 155, 149 N.E. 892
• Case Date: December 18, 1925
• Court: Supreme Court of Indiana

197 Ind. 155
149 N.E. 892

SCHEERER
v.
STATE.

No. 24891.

Supreme Court of Indiana.

Dec. 18, 1925.

Appeal from Circuit Court, Grant County; G. A. Henry, Judge.

William Scheerer was convicted of violation of the liquor law, and he appeals. Reversed, with directions to sustain motion for new trial.

[149 N.E. 893]

Charles R. Haller, of Huntington, Hays & Hays, of Sullivan, and John A. Kersey, of Marion, for appellant.

Arthur L. Gilliom, Atty. Gen., and Arnet B. Cronk, of Indianapolis, for the State.

WILLOUGHBY, J.

The appellant was prosecuted by affidavit for an alleged violation of the liquor law. This appeal is taken from a judgment rendered upon a verdict of guilty. The appellant has assigned as error the overruling of his motion to quash the affidavit, for a new trial, and in arrest of judgment.

[1] The charging part of the affidavit is as follows:

“Bert O. Renbarger, being duly sworn on his oath says: That one William Scheerer, *** on or about the 1st day of February, A. D. 1924, at the county of Grant, state of Indiana, as affiant verily believes, did then and there unlawfully sell, barter, exchange, give away, furnish, and dispose of one pint of intoxicating liquor for the sum of five dollars in money to Frank Shugart, then and there being. ***”

The motion to quash the affidavit stated the following grounds: (1) That the affidavit fails to charge a public offense; (2) the language used in the affidavit fails to charge a public offense with sufficient certainty.

The charge is based upon the first section of chapter 23, p. 70, of the Acts of 1923.

[2] Where a statute defines a crime and states what acts shall constitute a violation thereof, it is sufficient to charge the offense in the language of the statute. Faulkner v. State, 193 Ind. 663, 141 N. E. 514;Asher v. State, 194 Ind. 553, 142 N. E. 407;143 N. E. 513. It was not necessary to negative the exceptions which were contained in other parts of the statute. Asher v. State, supra.

Appellant says that the affidavit charges four distinct violations of the first prohibitive clause of said section 1, p. 70, Acts 1923. In State of Indiana v. Schipper, 193 Ind. 595, 141 N. E. 330, it is held that, when a statute makes it a crime to do any one of several things mentioned disjunctively, all of which are punishable alike, the whole may be charged conjunctively in a single count without objection for duplicity. This rule has been followed in numerous decisions in this jurisdiction. The court did not err in overruling the motion to quash the affidavit.

[3] The appellant moved for a change of venue from the county. This motion was verified and supported by affidavits. In it the affiant, appellant, says that he cannot have a fair and impartial trial of his said cause in Grant county, Ind., for the following reasons: (1) That an odium attaches to this defendant in said county on account of local prejudice; (2) that an odium attaches to the defendant's cause of defense in said county on account of local prejudice. It is further stated that he could not have made this affidavit and application for the change of venue within the time fixed by the rules of said court, for the reason that he had no...