Scherer v. State
| Decision Date | 03 January 1919 |
| Docket Number | 23,362 |
| Citation | 121 N.E. 369,188 Ind. 14 |
| Parties | Scherer v. State of Indiana |
| Court | Indiana Supreme Court |
From Hamilton Circuit Court; James M. Purvis, Judge.
Prosecution by the State of Indiana against C. B. Scherer. From a judgment of conviction, the defendant appeals.
Reversed.
Floyd G. Christian, Ira W. Christian, and Ralph H Waltz, for appellant.
Ele Stansbury, Attorney-General, Elmer E. Hastings and Dale F Stansbury, for the state.
Appellant was charged by affidavit, tried and convicted by a jury in the court below, with keeping, running and operating a place where intoxicating liquors were sold, in violation of § 8351 Burns 1914, Acts 1907 p. 689.
Appellant has appealed to this court and insists: (1) That the trial court erred in overruling his motion to quash the affidavit. In support of this claim, he makes the point that the affidavit does not specifically show that he was not licensed to sell liquor as provided by law. As a basis for this insistence our attention is called to the recital "not then and there having a license to sell intoxicating liquor," which he claims refers to the building as not being licensed, and not to him. In this appellant's contention is correct. That the affidavit so charges is plainly obvious. It is also true that there was no law in this state authorizing the issuance of a license to a building or to a place for the sale of intoxicating liquor. Appellant has not claimed, nor do we believe he will claim, that by reason of the ineffectual and inconsequential recital in question he was deceived or was in doubt as to the charge made against him. Had the pleader alleged that appellant did not then and there have a license to sell intoxicating liquors, he would have negatived the provisos in the statute. Schondel v. State (1910), 174 Ind. 734, 93 N.E. 67. But, considering the affidavit as we find it, the provisos were not negatived, nor was it necessary to do so in charging the offense of keeping running and operating a place where intoxicating liquors are sold, bartered and given away in violation of law. Rigrish v. State (1912), 178 Ind. 470, 99 N.E. 786. By eliminating the meaningless and surplus words from the affidavit, it then charges appellant with the offense aforesaid practically in the language of the statute, and is sufficient under the rulings of this court to withstand a motion to quash. Donovan v. State (1907), 170 Ind. 123, 83 N.E. 744; Regadanz v. State (1908), 171 Ind. 387, 86 N.E. 449; Rigrish v. State, supra.
Appellant also assigns as error: (2) The overruling of his motion to make the affidavit more specific. Under this specification he argues that he was entitled to the facts upon which the pleader based his conclusion that appellant "did then and there unlawfully keep, run and operate a place where intoxicating liquors were then and there sold, bartered and given away in violation of the laws of the State of Indiana."
"A statement of the facts constituting the offense in plain and concise language without unnecessary repetition" is the rule in criminal pleading. § 2040 Burns 1914, Acts 1905 p. 584, § 169; Brunaugh v. State (1909), 173 Ind. 483, 90 N.E. 1019. The affidavit before us, as to the particulars questioned, is the statement of ultimate facts which the state, in order to convict, must prove. The effect of appellant's insistence would require the pleader to state the evidence upon which he relies to sustain these facts. This is not the law. Brunaugh v. State, supra. The rule for which appellant contends would also contravene the well-settled rule that an offense, as here, may be charged in the language of the statute. From these observations we conclude that this is not a case where the remedy given by statute (Acts 1915 p. 123) applies.
Appellant has assigned error on the overruling of his motion for a new trial. Under this assignment he questions (1) instructions Nos. 2, 6, 8 and 9 given by the court to the jury on its own motion.
As to instruction No. 2, he insists that it invades the province of the jury and imposes restrictions and limitations upon the jury in weighing the evidence and in determining the probative forces of facts and circumstances. This instruction reads as follows:
This instruction is subject to criticism, in that the same consideration referred to in the last part of this instruction may import innocence as well as guilt; however, considering the instructions as a whole, we are persuaded that this instruction, for this reason, was not harmful to appellant.
It is true the Constitution of this state, Art. 1, § 19, gives the jury in criminal cases the right to determine the law and the facts, but this constitutional provision does not take away from the trial court the right to advise the jury as to the law applicable to such cases. The ultimate or material facts are those essential in charging the offense, and must be proved at the trial; while the incidental or subordinate facts mentioned in the instruction are those that are evidential. As to these two classes this court has uniformly held that the first must be proved beyond a reasonable doubt before there can be a conviction, and that it is unnecessary to so prove the latter. Osburn v State (1904), 164 Ind. 262, 271, 73 N.E. 601; State v. Fisk (1907), 170 Ind....
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