Schulmeyer v. State
| Decision Date | 14 October 1919 |
| Docket Number | No. 23544.,23544. |
| Citation | 124 N.E. 490,188 Ind. 463 |
| Parties | SCHULMEYER v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Criminal Court, Marion County; James A. Collins, Judge, and John F. Robbins, Judge pro tem.
John Schulmeyer was convicted under Burns' Ann. St. Supp. 1918, § 8356d (Acts 1917, c. 4, § 4), of unlawfully keeping intoxicating liquor for sale, and upon appeal to the criminal court he was again adjudged guilty as to count 2 of the affidavit, and he appeals. Judgment affirmed.
R. R. Dalton, of Indianapolis, for appellant.
Ele Stansbury and Edward M. White, both of Indianapolis, for the State.
This was a prosecution by affidavit, commenced in the city court of the city of Indianapolis, under section 8356d, Burns' 1918 Supplement (section 4, c. 4, p. 15, Acts 1917), 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 2 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 30 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 2 does not state facts sufficient to constitute a public offense. (2) That count 2 does not state the offense with sufficient certainty.
[1] 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, 100 Ind. 154;State v....
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