Smith v. State

Decision Date18 May 1927
Docket NumberNo. 24604.,24604.
Citation199 Ind. 217,156 N.E. 513
PartiesSMITH et al. v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Fayette Circuit Court; W. M. Sparks, Special Judge.

Cecil Smith, Lilly Smith, and Hiram Friend were convicted of receiving and possessing intoxicating liquor, to wit, white mule whisky, from a common and other carrier, and they appeal. Judgment as to the defendants first named reversed and remanded, with directions, and judgment against defendant last named reversed as of its date.

Wiles, Springer & Roots and G. Edwin Johnston, all of Connersville, and Alonzo Blair, of Shelbyville, for appellants.

U. S. Lesh, Atty. Gen., and Arnet B. Cronk, and Carl Wilde, both of Indianapolis, for the State.

TRAVIS, J.

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. Chapter 4, § 15, Acts 1917. Motions to quash the indictment, which were based upon the second and fourth grounds therefor of the statute (section 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 insufficiencyof 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 defendant's 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 concerns 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 the indictment. Only one offense is charged or defined by the statute, in so far as the kind of carrier is concerned. To charge the offense, it was necessary only to allege that defendant received the intoxicating liquor, or that he possessed such liquor, received from a carrier, without specifying the carrier's categorical classification. So the offense charged here amounts only to receiving from, or possessing such liquor received from, a “carrier.”

The language of the indictment, which lays a receiving and possession of such liquor from both a common and other carrier, is inclusive, and comprehends all classes of carriers; but it does not follow that, to sustain a verdict of guilty under this charge, there must be sufficient evidence to sustain a receiving from all classes of carriers. The language of the allegation is not subject to be challenged because of a variance between the crime as charged and the evidence, as might be the case if a particular common carrier were named in the indictment, and there was a lack of evidence to sustain that allegation. The indictment is sufficient to withstand the motion to quash.

Appellant complains of instructions 1 and 2, because they are each “incorrect and misleading,” and therefore prejudicial. Under this proposition, the points are made that neither of the instructions is relevant to the issues, and cannot be applicable to the evidence, for the reason that the indictment in each count thereof charges a receipt of the liquor from two carriers, and the instructions are that the defendants stand charged with receiving such liquor from a common or other carrier. The objection rests upon the variance between the language of the indictment and that of the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT