Simpson v. State

Decision Date06 October 1925
Docket NumberNo. 24781.,24781.
Citation149 N.E. 53,197 Ind. 77
PartiesSIMPSON v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Fountain County; O. B. Ratcliff, Judge.

Jesse Simpson was convicted of unlawfully transporting intoxicating liquor, and he appeals. Affirmed.Ralph Daly and Samuel E. Johnson, both of Anderson, for appellant.

U. S. Lesh and Mrs. Edward Franklin White, Deputy Atty. Gen., for the State.

MYERS, J.

Appellant, in the court below, was convicted of the charge of having, on or about March 3, 1924, unlawfully transported intoxicating liquor in an automobile. Acts 1923, c. 34, p. 108, § 1. He seeks a reversal of the judgment rendered against him for alleged errors of the court in overruling his motion to quash the affidavit, and in overruling his motion for a new trial.

Appellant, in support of his motion to quash, makes the point that the offense is not described with sufficient certainty, in that it fails to charge a felonious transportation. He relies largely upon the case of Sovine v. State, 85 Ind. 576. In that case, grand larceny was the charge. The opinion of the court (page 578) quotes from 1 Chitty Crim. Law, 242, the statement, “and ‘Feloniously’ must be introduced in every indictment for felony.” With this quotation as a text, appellant earnestly insists that, as the affidavit at bar omits the word “feloniously” in describing the offense intended to be charged, it was insufficient for any purpose, and therefore subject to a motion to quash.

It must be kept in mind that the quoted statement from Mr. Chitty's treatise on criminal law pertained to the general principles, rules, and practice affecting the structure of an indictment at common law, and that this court, in reviewing the Sovine Case, had before it a statute making felonious intent an essential element of the offense.

[1] In this state all crimes and misdemeanors are presumed to be defined and punishment therefor fixed by statute. Section 237, Burns 1914 (§ 237, R. S. 1881). But, in case a crime is thus created and not well defined, the courts may refer to the common law for a definition. State v. Patton, 159 Ind. 248, 251, 64 N. E. 850;Glover v. State, 179 Ind. 459, 101 N. E. 629, 45 L. R. A. (N. S.) 473;State v. Dailey, 191 Ind. 678, 134 N. E. 481, 20 A. L. R. 1004.

[2] However, in the instant case, the alleged offense was created, adequately defined, and the punishment fixed by statute which “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.” Simpson v. State, 195 Ind. -, 146 N. E. 747. The wording of the affidavit describing the alleged offense is substantially in the language of the statute preceded by the word “unlawfully.” Affidavits of the same import, as the one at bar, have been held sufficient to withstand a motion to quash. Smith v. State, 194 Ind. 624, 144 N. E. 141; ...

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1 cases
  • Busch v. State
    • United States
    • Supreme Court of Indiana
    • 6 Enero 1926
    ...this statute it is only necessary to follow its language in charging the offense, which was done in the amended affidavit. Simpson v. State (Ind. Sup.) 149 N. E. 53. [2] As to the effect of failing to negative the exception noted against the second count, we may say that the statute (sectio......

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