Scheerer v. State

Decision Date18 December 1925
Docket NumberNo. 24891.,24891.
Citation197 Ind. 155,149 N.E. 892
CourtIndiana Supreme Court


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.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.


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 knowledge of the odium existing against him in said county and against his cause of defense until the evening of the 20th day of May, 1924, and that he makes and files said affidavit at the first opportunity and on the first day of court after he learned said facts. Counter affidavits were filed against granting the change of venue and controverting the facts alleged in the affidavits in support of such change of venue.

This motion for a change of venue was based upon the statutory grounds named in section 2074, Burns' 1914. Section 2078, Burns' 1914, provides that, when an affidavit for change of venue from the county is founded upon excitement or prejudice in the county against the defendant, and is filed in a criminal case punishable by death, the court shall grant a change of venue. In cases not punishable by death, it is a matter of discretion with the court whether the change shall be granted. Leach v. State, 177 Ind. 234, 97 N. E. 792;Hinkle v. State, 174 Ind. 276, 91 N. E. 1090.

The ruling of the trial court on a motion for a change of venue as to the existence of excitement and prejudice upon conflicting affidavits is a determination of an issue of fact, and is conclusive on appeal. Hinshaw v. State, 188 Ind. 447, 124 N. E. 458. It was not error to refuse to grant the change of venue.

[4] Under the specifications in his motion for a new trial, appellant says the court erred in giving to the jury instructions numbered 5 and 6, and he assigns error as...

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6 cases
  • Sammons v. State
    • United States
    • Indiana Supreme Court
    • February 4, 1936
    ...124 N. E. 458;Burns v. State (1922) 192 Ind. 427, 136 N. E. 857;Pindell v. State (1925) 196 Ind. 175, 147 N. E. 711;Scheerer v. State (1925) 197 Ind. 155, 149 N. E. 892;Pontarelli v. State (1931) 203 Ind. 146, 176 N. E. 696;Chizum v. State (1932) 203 Ind. 450, 180 N. E. 674;Ramsey v. State ......
  • Swanson v. State
    • United States
    • Indiana Supreme Court
    • January 26, 1944
  • Taylor v. State
    • United States
    • Indiana Supreme Court
    • October 1, 1976
    ...of his account of the transaction, and his interest in the result of the case, as affecting his credibility.'); Scheerer v. State, (1925) 197 Ind. 155, 149 N.E. 892 ('you should consider the interest of defendant in the result of the case.'). On the other hand, this Court has approved instr......
  • Terlizzi v. State
    • United States
    • Indiana Supreme Court
    • December 7, 1926
    ...In support of her contention that this was error, appellant cites Siberry v. State, 133 Ind. 677, 688, 33 N. E. 681, and Scheerer v. State (Ind. Sup.) 149 N. E. 892, holding an instruction which told the jury that “a reasonable doubt is such a doubt as the jury are able to give a reason for......
  • Request a trial to view additional results

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