Smith v. State
| Decision Date | 18 May 1927 |
| Docket Number | 24,604 |
| Parties | Smith et al. v. State of Indiana |
| Court | Indiana Supreme Court |
1. INDICTMENT AND AFFIDAVIT.---Requirements of indictments and affidavit.---An indictment must allege facts sufficient to state each element of the offense charged, and with such particularity that the accused may know from the pleading the nature and character of the accusation against him, but this rule applies only to the essential elements of the offense p. 220.
2. INTOXICATING LIQUORS.---Essential elements of offense of receiving intoxicating liquor from carrier.---The essential elements of the offense of receiving intoxicating liquor from a carrier, as defined in 15 of the prohibition act of 1917 (Acts 1917 p. 15, 8356o Burns' Supp. 1921) were intoxicating liquors, receiving them, and from whom received, not mentioning the other elements of the crime relevant to jurisdiction, etc., which are common to all indictments and affidavits. p. 220.
3. INTOXICATING LIQUORS.---Necessary proof in prosecution for receiving intoxicating liquor from carrier.---In a prosecution for receiving intoxicating liquor from a carrier as prohibited by 15 of the prohibition law of 1917 (Acts 1917 p. 15, 8356o Burns' Supp. 1921), it was essential to prove, as an essential element of the offense, that the agency that brought or conveyed the liquor to the one who received it was a carrier. p. 220.
4. INDICTMENT AND AFFIDAVIT.---Necessary to plead ultimate facts only.---In an indictment or affidavit, it is necessary only to plead ultimate facts, and evidentiary facts need not be pleaded. p. 220.
5. INTOXICATING LIQUORS.---Indictment charging receipt of liquor "from common and other carrier," etc., charged but one offense.---An indictment charging the accused with receiving intoxicating liquor "from a common and other carrier," etc., in violation of 15 of the prohibition law of 1917 (Acts 1917 p. 15, 8356o Burns' Supp. 1921) charged but one offense and did not charge the receipt of liquor from two different carriers. p. 220.
6. INTOXICATING LIQUORS.---Indictment charging receipt of intoxicating liquor from a "carrier" sufficient without designating kind of carrier.---In charging the offense of receiving intoxicating liquor from a carrier, as defined in 15 of the prohibition law of 1917 (Acts 1917 p 15, 8356o Burns' Supp. 1921), it was necessary only to allege that the defendant received such liquor from a carrier, without specifying the particular kind of a carrier. p. 220.
7. INTOXICATING LIQUORS.---Evidence necessary in charge of receiving intoxicating liquor from a "common and other carrier."---While an indictment charging receiving intoxicating liquor from a "common and other carrier" might have been construed to charge the receiving such liquor from both a common and other carrier, it would not be necessary to sustain a verdict of guilty under such charge to prove a receiving from all classes of carriers, nor would there be a variance if the evidence only showed a receiving from one carrier. p. 221.
8. INTOXICATING LIQUORS.---Instructions as to receiving intoxicating liquor from a "common or other carrier."---In a prosecution under the prohibition law of 1917 (Acts 1917 p. 15, 15, 8356o Burns' Supp. 1921) for receiving intoxicating liquor from a carrier, where the indictment charged receiving such liquor from a "common and other carrier," instructions that the defendants were charged with receiving liquor from a common or other carrier were not misleading and, therefore, not prejudicial. p. 221.
9. CRIMINAL LAW.---Instruction fully covered by instructions given was properly refused. p. 222.
10. INTOXICATING LIQUORS.---Proof necessary in charge of receiving intoxicating liquor from carrier.---A necessary element which must be proved in a prosecution for receiving intoxicating liquor from a carrier under the prohibition law of 1917 (Acts 1917 p. 15, 15, 8356o Burns' Supp. 1921) is that the liquor was received from a common or other carrier. p. 224.
11. INTOXICATING LIQUORS.---Evidence held insufficient to sustain conviction for possessing intoxicating liquor received from a carrier.---In a prosecution under the prohibition law of 1917 for possessing intoxicating liquor received from a carrier, the evidence was held insufficient to sustain a conviction where there was an entire absence of evidence to show that the party that sold the liquor to defendants from a vehicle was a carrier of such liquor. p. 224.
From Fayette Circuit Court; Will M. Sparks, Special Judge.
Cecil Smith, Lilly Smith and Hiram Friend were convicted of receiving intoxicating liquor from a carrier, and possessing the same, and they appeal.
Reversed.
Wiles, Springer & Roots, G. Edwin Johnston and Alonzo Blair, for appellants.
U. S. Lesh, Attorney-General, Arnet B. Cronk and Carl Wilde, for the State.
Appellants were jointly charged, by indictment in two counts, that they did; (1) Unlawfully receive "intoxicating liquors, to wit: white mule whisky, from a common and other carrier," etc., and; (2) unlawfully possess "intoxicating liquor, to wit: white mule whisky received from a common and other carrier," etc. (Acts 1917, ch. 4, § 15). Motions to quash the indictment, which were based upon the second and fourth grounds therefor of the statute (§ 2227 Burns 1926) were overruled. Defendants were tried by a jury upon pleas of not guilty, and verdicts of guilty found. This appeal is by all defendants from the judgments upon the verdicts. The separate and several motion for a new trial, based upon the insufficiency of the evidence to sustain the verdict; that the verdict is contrary to law; and upon the court's refusal to give instructions, and for giving instructions to the jury, was overruled. Complaint is made upon appeal for error in overruling defendants' motion to quash the indictment, and the motion for a new trial.
Appellants' proposition concerning the indictment is, that each count thereof fails to disclose the name or names of the common and the other carrier or carriers from whom appellants received the liquor; and that, as the indictment stands, the allegation that the receiving was from carriers, not naming them, is a mere conclusion.
The offenses, as charged, are in the language of the statute. An indictment must allege facts sufficient to set forth each essential element of the offense charged, and with such particularity that those accused may know from the pleading the nature and cause of the accusation against them. This rule applies only to pleading the essential elements of the offense. The essential elements of the offense here sought to be charged are: (1) Intoxicating liquors; (2) receiving; (3) from whom received; not mentioning other elements of the crime, which concern jurisdiction, etc., and which are formal and common to all indictments. It is not enough to convict of offending this statute, to prove that the defendant received the liquor, but it also must be proved that he received it from a carrier. It is necessary to prove as an essential element of this offense that the agency that brought or conveyed the liquor to the one who received it is a carrier. Appellants are complaining because the name of the actual carrier is not pleaded. This would not end their troubles, for that path leads unerringly to the pleading of facts which establish the delivering agency to be a carrier. To end the discussion, it is only necessary to invoke the rule that, even in criminal pleading, only ultimate facts, and not evidentiary facts, need be pleaded. State v. McCormack (1850), 2 Ind. 305; Brunaugh v. State (1910), 173 Ind. 483, 505, 90 N.E. 1019; Scherer v. State (1919), 188 Ind. 14, 121 N.E. 369.
The ultimate fact here, concerning this element of the offense, is the receipt of the liquor from a carrier--either a common carrier, a private carrier, or a mandatory. The evidentiary facts necessary to prove that the agency was a carrier, to sustain a verdict of guilty, need not be pleaded. There is no merit in appellant's proposition that defendants received the liquor from two carriers, both from a common and other carrier, as charged by...
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