Schulmeyer v. State
| Decision Date | 14 October 1919 |
| Docket Number | 23,544 |
| Citation | 124 N.E. 490,188 Ind. 463 |
| Parties | Schulmeyer v. State of Indiana |
| Court | Indiana Supreme Court |
From the Marion Criminal Court (49,081); John F. Robbins, Judge pro tem.
Prosecution by the State of Indiana against John Schulmeyer. From a judgment of conviction, the defendant appeals.
Affirmed.
R. R Dalton, for appellant.
Ele Stansbury, Attorney-General, and Edward M. White, for the state.
This was a prosecution by affidavit commenced in the city court of the city of Indianapolis under § 8356d Burns' Supp 1918, § 4, chapter 4, Acts 1917 p. 15, which resulted in a trial and finding in such city court of guilty as charged. The appellant appealed to the criminal court of Marion county, and was there tried by the court without a jury, and found guilty as to count two of said affidavit, and judgment was rendered on such finding that appellant make his fine to the State of Indiana in the sum of $ 100 and costs, and be imprisoned in the Marion county jail for a term of thirty days, and from such judgment appellant appeals, and assigns as error: (1) The court erred in overruling appellant's motion to quash the second count of the affidavit. (2) The court erred in overruling appellant's motion for a new trial.
The affidavit was in five counts and the appellant moved, in the Marion Criminal Court, to quash each count of said affidavit. The second count, omitting the caption, reads as follows: "And affiant aforesaid upon his oath aforesaid says that John Schulmeyer on October 14, 1918, at and in the city and county aforesaid, did then and there unlawfully keep intoxicating liquor to wit: whisky, gin, wine and beer, with intent then and there to sell, barter, exchange, give away, furnish and otherwise dispose of the same to persons, to the affiant unknown, within this state; contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Indiana." The motion to quash said count states two reasons: (1) That count two does not state facts sufficient to constitute a public offense. (2) That count two does not state the offense with sufficient certainty.
Appellant contends that the second count of the affidavit fails to allege that the appellant kept intoxicating liquors for the purpose of sale within the state, and that a charge in the second count of the affidavit that the defendant kept intoxicating liquors with intent then and there to sell the same to persons to the affiant unknown within the state cannot be construed as a charge that the defendant kept liquors for the purpose of sale to persons within the state.
The appellant is wrong in his construction of the language used. This count of the affidavit unequivocally states that the defendant, John Schulmeyer, in the city of Indianapolis, in Marion county, in the State of Indiana, did then and there unlawfully keep intoxicating liquor, to wit, whisky, gin, wine and beer, with intent then and there to sell, barter, exchange, give away, furnish and otherwise dispose of the same. The material allegations of this count of the affidavit are in the language of the statute and are sufficient. Davis v. State (1885), 100 Ind. 154; State v. Stout (1887), 112 Ind. 245, 13 N.E. 715, 13 N.E. 715; Fahnestock v. State (1885), 102 Ind. 156, 1 N.E. 372; Regadanz v. State (1908), 171 Ind. 387, 86 N.E. 449; State v. Sarlin (1919), ante 359, 123 N.E. 800.
As causes for a new trial appellant's motion alleges: First the finding of the court is contrary to law; second, the finding of the court is not sustained by sufficient evidence. The appellant contends that the finding of the court is not...
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