State v. Davis

• Decision Date: 25 October 1922
• Docket Number: No. 24082.,24082.
• Parties: STATE v. DAVIS.
• Court: Indiana Supreme Court

192 Ind. 423

136 N.E. 843

STATE

v.DAVIS.

No. 24082.

Supreme Court of Indiana.

Oct. 25, 1922.

Appeal from Circuit Court, Fulton County; Reuben R. Carr, Judge.

Ostinell Davis was indicted for an offense, and, on motion to quash, judgment was rendered, quashing the indictment and discharging defendant, and the state appeals. Affirmed.

U. S. Lesh, Atty. Gen., Mrs. Edw. F. White, Deputy Atty. Gen., and C. C. Campbell, of Rochester, for the State.

WILLOUGHBY, J.

This is a criminal prosecution for alleged violation of section 2535, Burns' 1914. The section of statute charged to have been violated is as follows:

“Whoever shall sell or offer for sale any pike, pickerel, wall-eyed pike, perch, bluegills, black bass, green bass, rock bass, or other species of bass caught in any of the waters of this state, at any time, shall, on conviction, be fined five dollars ($5) for each fish caught, sold or offered for sale, and proof that any of the varieties of fish mentioned in this section were sold or offered for sale shall be considered prima facie evidence that said fish were caught in the waters of this state.”

Based upon such section of statute the grand jury of Fulton county, Ind., returned in the Fulton circuit court an indictment against Ostinell Davis; the charging part of the said indictment being that on the 6th day of August, 1920, in and at said county and state aforesaid, the said Ostinell Davis-

“did then and there unlawfully sell and offer for sale certain fish, to wit, two bluegills, by then and there serving and causing to be served said fish as a part of a supper to one Jacob Havel, which said supper was then and there sold at and for the price of seventy-five cents, and which said fish were caught in the waters of the state of Indiana.”

The defendant was arraigned on said charge, and filed a motion to quash the indictment on the following grounds:

“First, the facts stated in said indictment do not constitute a public offense.

Second, the facts stated in said indictment clearly show that the supper was sold at and for the price of 75 cents, and said indictment discloses the fact that the fish therein was served as a part of the supper, but does not allege that said fish were sold as a part of the supper.”

The motion to quash the indictment was sustained by the trial court, to which ruling the state by its prosecuting attorney excepted and the court, of its own motion, granted the state of Indiana leave to file an affidavit against said defendant. The state of Indiana declined to plead further, and the court found that defendant should be discharged, and returned a judgment quashing the indictment and discharging the defendant. From such judgment the state appeals, and assigns as error that the court erred in sustaining defendant's motion to quash the indictment.

The state, in its brief, sets out the section of statute alleged to have been violated, and refers us to a number of cases alleged to sustain its contention that the indictment was sufficient, and that the court erred in sustaining the motion to quash. We have examined all of the cases cited by the Attorney General, and find that they throw some light upon the question of how much proof would be required to sustain an indictment for a violation of the game laws in the several jurisdictions in which said decisions were rendered; but they do not throw any light upon the question of the sufficiency of this indictment under consideration as to charging a public offense under the statute quoted. The Constitution of this state provides that the defendant shall have a right to demand the nature and cause of...