Shorter v. State
| Decision Date | 08 May 1929 |
| Docket Number | No. 13684.,13684. |
| Citation | 89 Ind.App. 288,166 N.E. 287 |
| Parties | SHORTER v. STATE. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Clay Circuit Court; Thos. W. Hutchinson, Judge.
Samuel L. Shorter was convicted of operating a motor vehicle on a public highway while under the influence of intoxicating liquor, and he appeals. Affirmed.Shipley & Johnson, of Terre Haute, and R. V. Tozer, of Brazil, Ind., for appellant.
James M. Ogden, Atty. Gen., and Burke Walker, Deputy Atty. Gen., for the State.
Appellant was convicted of the offense of operating a motor vehicle upon a public highway while under the influence of intoxicating liquor, in violation of the Act of March 10, 1927 (Acts 1927, p. 562, c. 191), which provides that any person operating a motor vehicle on a public highway of the state while under the influence of intoxicating liquor shall be guilty of a misdemeanor or punishable by fine, to which may be added imprisonment in jail or state farm, and, for a second or subsequent offense, shall be deemed guilty of a felony punishable by imprisonment for a term of not less than one year nor more than five.
It is provided by section 1 of the Act of March 8, 1927 (Acts 1927, p. 287, c. 109):
The record shows that the affidavit charging the offense was first filed in the city court of the city of Brazil; that appellant appeared in the city court with counsel, and on arraignment pleaded not guilty; that the cause was continued, and later a trial before the mayor resulted in a conviction, from which an appeal was taken to the circuit court, where appellant, without first having withdrawn his plea of not guilty, filed a plea in abatement setting up that, in violation of the Act of March 8, 1927, supra, the officer purporting to make the arrest of appellant was not, at the time, wearing a distinct uniform and badge of authority, was not a sheriff or deputy sheriff, and that no uniformed officer was present. To the plea in abatement, the state demurred on the ground that the plea came too late, having been filed after plea of not guilty and trial and conviction in the city court. The demurrer was sustained. The record further shows that on the trial in the circuit court the evidence consisted of the testimony of the city marshal, who made the arrest, and the patrolman, who was present.
Appellant offered no testimony, and made no defense on the merits. The marshal testified that on September 6, 1927, he observed appellant operating an automobile on one of the streets of the city of Brazil; that he observed and talked to appellant, and that he was, at the time, under the influence of intoxicating liquor, “was intoxicated”; that he then and there made the arrest. On cross–examination, the marshal testified that when he made the arrest he was not in uniform and wore no badge. The testimony of the marshal was in all things corroborated by the patrolman.
On appeal appellant assigns as error: (1) Action of the court in sustaining demurrer to the plea in abatement; and (2) overruling motion for new trial.
It is urged by appellant that, because the city marshal, who made the arrest, was not at the time in uniform, the court erred in sustaining demurrer to the plea in abatement setting up that fact. This contention is without merit.
[1][2] Appellant, with his attorney, appeared in the city court, where, without questioning the court's jurisdiction, he was tried after he had entered a plea of not guilty. It is fundamental that a plea in abatement must precede a plea in bar; and the settled rule in this state, supported by the weight of...
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