Stapert v. State

• Decision Date: 22 April 1924
• Docket Number: No. 24395.,24395.
• Citation: 195 Ind. 338,143 N.E. 587
• Parties: STAPERT v. STATE.
• Court: Indiana Supreme Court

195 Ind. 338

143 N.E. 587

STAPERT

v.STATE.

No. 24395.

Supreme Court of Indiana.

April 22, 1924.

Appeal from Criminal Court, Marion County; James A. Collins, Judge.

Joe Stapert was convicted of manufacturing intoxicating liquor and having in his possession a still, and he appeals. Affirmed.

Clyde P. Miller, of Indianapolis, for appellant.

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

EWBANK, C. J.

Appellant was tried on an indictment in two counts, returned by the grand jury of Marion county, Ind. The first count charged that on December 29, 1922, he and three other men, at said county and state, “did then and there unlawfully manufacture intoxicating liquor,” and “did then and there unlawfully keep and have in their possession intoxicating liquor, with intent then and there to sell, barter, give away, furnish, and otherwise dispose of the same to persons to the grand jury unknown, within this state.” The second count charged that on the same date, at said county and state, the defendants “did then and there have and possess a certain still, device, and property for the manufacture of intoxicating liquor, intended for use in violation of the laws of this state.” There was no motion to quash the indictment, but each defendant waived arraignment and entered a plea of not guilty. After hearing the evidence the trial court found appellant “guilty as charged,” and rendered judgment that he be fined $200 and imprisoned 90 days. A week later appellant filed his motion for a new trial, which was overruled, and he then filed a motion in arrest of judgment, which stated the statutory causes for which a judgment may be arrested (section 2159, Burns' 1914; section 283, c. 169, p. 646, Acts 1905), and also alleged that the indictment was based only on incompetent evidence heard by the grand jury.

[1][2] Overruling the motion for a new trial and overruling the motion in arrest of judgment are the only errors properly assigned. The sufficiency of the facts stated in the indictment to constitute a public offense cannotbe challenged by an independent assignment of error. Robinson v. State, 184 Ind. 208, 210, 110 N. E. 980. A motion in arrest of judgment, not made until after judgment had been rendered, presented no question. Smith v. State ex rel., 140 Ind. 343, 350, 39 N. E. 1060;Smith v. Biesiada, 174 Ind. 134, 139, 90 N. E. 1009. But the charge is expressed in the words of the statute, and counsel have not suggested a reason why that should be held insufficient. Section 1, c. 250, p. 736, Acts 1921; Donovan v. State, 170 Ind. 123, 127, 83 N. E. 744;Rigrish v. State, 178 Ind. 470, 473, 99 N. E. 786;Scherer v. State, 188 Ind. 14, 17, 121 N. E. 369.

[3][4] An indictment is not required to show by negative averments that the defendant is not within an exception contained in some other section. Jenkins v. State, 188 Ind. 510, 124 N. E. 748. And the question whether or not the grand jury heard incompetent evidence cannot be raised by a motion in arrest. Section 2159, Burns' 1914 (section 283, c. 169, p. 646, Acts 1905). Some authorities have held that this objection is not matter of defense at all. Pointer v. State, 89 Ind. 255, 257;Lesueur v. State, 176 Ind. 448, 451, 452, 95 N. E. 239;Noll v. Dailey, 72 W. Va. 520, 79 S. E. 668, 47 L. R. A. (N. S.) 1207, and note.

There was evidence that an officer with a search warrant entered the house in Marion county, Ind., where appellant lived with his wife, and found them and their children and three men, who were jointly indicted with appellant, sitting at a table, eating their noon meal; that he found in the cellar of that house a 60-gallon still, with a fire burning under it in operation, with a double condensing coil, a whisky hydrometer, 5 gallons of “mule whisky,” 7 gallons of liquid mash, 35 barrels of salt mash, a box of corks and some other articles, and that the “odor of mash, whisky stilling,” was plainly discernible upstairs, and had been smelled by men hired to work in appellant's dairy, who lived there for a month past; that appellant denied knowing that the still was there, and afterward said that he rented that part of the basement for a dollar a day to two of the other men who were there, but those men denied this; that appellant operated a dairy and had a number of cows that were milking, and sent the milk into Indianapolis each day in a truck.

[5] Appellant objects to the sufficiency of this evidence because, he says, the affidavit on which the search warrant was issued, although certified by the justice of the peace before whom it was made, and who issued the search warrant, did not bear the impress of his seal. More then 70 years ago it was enacted that a form of affidavit should be sufficient to authorize the...