Simpson v. State

• Decision Date: 24 February 1925
• Docket Number: No. 24588.,24588.
• Citation: 195 Ind. 633,146 N.E. 747
• Parties: SIMPSON v. STATE.
• Court: Indiana Supreme Court

195 Ind. 633

146 N.E. 747

SIMPSON

v.STATE.

No. 24588.

Supreme Court of Indiana.

Feb. 24, 1925.

Appeal from Circuit Court, Pike County; John F. Dillon, Judge.

Henry Simpson was convicted of transporting intoxicating liquor in an automobile, and he appeals. Affirmed.Oscar Lanphar, of Princeton, for appellant.

U. S. Lesh, Atty. Gen., for the State.

EWBANK, J.

Appellant was convicted on a charge of unlawfully transporting intoxicating liquor in an automobile; the jury finding that he was 28 years of age. He has assigned as error the overruling, severally, of his motions for a new trial, to quash the affidavit, in arrest of judgment, and to modify the judgment.

[1] The affidavit upon which he was prosecuted charged that on, etc., at, etc., appellant and two other defendants “did then and there transport intoxicating liquor in an automobile, contrary,” etc. The only objection to its sufficiency suggested by counsel is that it does not allege that he “feloniously” did the alleged acts, which averment would be necessary in charging a felony at common law. But common-law crimes are abolished by statute in Indiana. Section 237, Burns' 1914 (section 237, R. S. 1881). And an indictment is only required to set out “a statement of the facts constituting the offense in plain and concise language without unnecessary repetition.” Section 2040, Burns' 1914 (section 1731, R. S. 1881). The statute under which appellant was prosecuted and convicted (section 1, c. 34, Acts 1923, p. 108) does not use the word “feloniously” in defining the offense forbidden, nor necessarily imply that the act prohibited must be done with felonious intent in order to be criminal. The affidavit described the alleged offense in the language of the statute, and that was sufficient. Asher v. State (Ind. Sup.) 142 N. E. 407;Id. (Ind. Sup.) 143 N. E. 513;Volderauer v. State (Ind. Sup.) 143 N. E. 674.

[2] Appellant further insists that said act of 1923, supra, is void because it does not designate the place where a person shall be imprisoned who violates it. The act recites that any person who shall transport intoxicating liquor in any automobile or other vehicle “shall be guilty of a felony, and upon conviction shall be imprisoned not less than one year or more than two years, and fined,” etc. Another statute enacts that-

“In all cases of felony tried before any court or jury in this state, if the defendant, being a male person, be found guilty of any crime other than treason or murder, it shall be the duty of the court or jury to further find whether he is over 16 and less than 30 years of age. If *** between such ages *** the court *** shall sentence him to the custody of the board of managers of the Indiana reformatory, to be confined in said reformatory, or at such other place as may be designated by such board where he can be safely and properly cared for,” etc. Sections 2151, 9907, Burns' 1914 (section 275, c. 169, Acts 1905, p. 644; section 8, c. 53, Acts 1897, p. 73).

The law sufficiently designated the place where appellant should be imprisoned.

No error was committed in overruling the motions to quash the affidavit and in arrest of judgment.

There was undisputed evidence that appellantand three other men rode in a Ford sedan automobile from Princeton, in Gibson county, across Pike county to a point east of Jasper, in Dubois county, and then drove back across Pike county; that one of the other men owned the car and drove it, and appellant rode in the back seat; that they had a quart bottle of whisky when they started, and drank it as they rode along. Appellant testified that on the road east of Winslow, at a point shown by undisputed evidence to be in Pike county, the bottle was passed from hand to hand, and each of them, including appellant, carried it in his hand and drank from it as they rode along and emptied it; that the empty bottle was then thrown away. Other witnesses testified without dispute that in Dubois county some members of the party bought a gallon of whisky in a jug and a quart in a bottle, and that they returned into and for eight miles through Pike county, until the automobile ran against a tree when just past Winslow; that the jug, almost full of whisky, and the bottle partly full, were thrown from the car, and were found near it; and that appellant and his companions were badly intoxicated when persons attracted by the accident arrived on the scene. Witnesses also testified that appellant and another of the party bought three quarts of the whisky obtained in Dubois county, and that the driver of the car bought and paid for...