Scott v. State

• Decision Date: 25 October 1911
• Docket Number: No. 22,049.,22,049.
• Citation: 96 N.E. 125,176 Ind. 382
• Parties: SCOTT v. STATE.
• Court: Indiana Supreme Court

176 Ind. 382

96 N.E. 125

SCOTT

v.STATE.

No. 22,049.

Supreme Court of Indiana.

Oct. 25, 1911.

Appeal from Circuit Court, Whitley County; Luke H. Wrigley, Judge.

Durant C. Scott was convicted of illegally selling intoxicating liquor, and he appeals. Affirmed.

Gates & Whiteleather, for appellant. Thomas M. Homan, Edwin Corr, Thos. H. Branaman, and Jas. E. McCullough, for the State.

COX, J.

Appellant, who was a druggist, was convicted in the court below, after a trial by jury, of selling intoxicating liquor in violation of section 2 of the act of 1907 (Acts 1907, p. 689), being section 8352, Burns 1908. Error is assigned on the action of the trial court in overruling appellant's motion to quash the indictment on which he was tried and in overruling his motion for a new trial.

The presumption is in favor of the regularity and legal correctness of the action of the trial court in its rulings on matters preliminary to and during the progress of the trial, and therefore it is incumbent on the appellant, who asserts error in such matters, to present a transcript which affirmatively shows the commission of the error of which complaint is made. The record in this case, after the formal showing of the presence of the state and its attorneys and the defendant and his attorneys, contains the following: “And defendant now moves the court to quash the indictment herein, which said motion is by the court overruled, and to which ruling of the court the defendant excepts.” No other reference to a motion to quash or the action of the court thereon is contained in the transcript before us. It is nowhere made to appear in the record on what ground or reason the motion to quash was made, or that any cause for quashing the indictment was made the basis for the motion, and we cannot presume, in aid of appellant's charge of error, and against the correctness of the court's ruling, that any cause for such action was stated.

The Criminal Code (section 2065, Burns 1908) grants a defendant the right to move to quash an indictment against him when it appears upon the face thereof either: (1) That the grand jury which found the indictment had no legal authority to inquire into the offense charged. (2) That the facts stated in the indictment do not constitute a public offense. (3) That the indictment contains matter which, if true, would constitute a legal justification of the offense charged, or other legal bar to the prosecution. (4) That the indictment does not state the offense with sufficient certainty.

[1] It has been held that our statutory motion to quash an indictment bears the same relation to an indictment that a general demurrer does to a complaint under our Civil Code. Davis v. State (1879) 69 Ind. 130-134; Gillette, Crim. Law (2d Ed.) § 767.

It would not for a moment be contended that a complaint would be challenged so as to compel a ruling in favor of one who merely presented to the court the bare statement that the defendant “demurs to the complaint,” without setting out any recognized ground for the demurrer. So in a criminal case,...