State v. New

• Decision Date: 05 December 1905
• Docket Number: 20,654
• Citation: 76 N.E. 400,165 Ind. 571
• Parties: State v. New
• Court: Indiana Supreme Court

76 N.E. 400

165 Ind. 571

State v. New

No. 20,654

Supreme Court of Indiana

December 5, 1905

From Hancock Circuit Court; Edward W. Felt, Judge.

Prosecution by the State of Indiana against Thomas H. New. From a judgment quashing the affidavit, the State appeals. Transferred from Appellate Court (see State v. New, 36 Ind.App. 521) under subd. 2, § 1337j Burns 1901, Acts 1901, p. 565, § 10.

Reversed.

Charles W. Miller, Attorney-General, Charles L. Tindall, Prosecuting Attorney, and W. C. Geake, for the State.

William A. Hough, for appellee.

OPINION

Hadley, J.

Section 2280 Burns 1901, § 2159 R. S. 1881, reads thus "Whoever knowingly suffers his horse, mare, or gelding to be run in a horse-race along any public highway in this State; and whoever acts as a rider in any such race, on being convicted, shall be fined not more than $ 50 nor less than $ 5."

Under the statute appellee was convicted by the mayor of Greenfield upon an affidavit charging that said Thomas H. New on the day of February, 1905, at Hancock county, Indiana, did then and there unlawfully act as a rider in a certain horse-race along the public highway then and there situate. From the judgment of conviction appellee appealed to the circuit court, where he successfully moved to quash the affidavit. The State appealed to the Appellate Court, which latter court, having considered the appeal, certified the case to this court under subd. 2, § 1337j Burns 1901, Acts 1901 p. 565, § 10 (State v. New [1905], 36 Ind.App. 521, 76 N.E. 181) with a recommendation that we overrule the decision in Myers v. State (1848), 1 Ind. 251.

In that case this court held that an indictment charging a similar offense in substantially the same words "was too loose and vague to be considered sufficient." It was said by this court, in State v. Bougher (1833), 3 Blackf. 307, that "No rule is better settled than that which regards as sufficient in an indictment, the averment of an offense in the language of a statute." The substance of the rule here mentioned has since been reaffirmed by this court a great many times. See collection of cases in note to Gillett, Crim. Law (2d ed.), § 132a. See, also State v. Beach (1897), 147 Ind. 74, 36 L. R. A. 179, 46 N.E. 145; State v. Darlington (1899), 153 Ind. 1, 53 N.E. 925; Johns v. State (1902), 159 Ind. 413, 65 N.E. 287. In the latter case it is said: "If a criminal statute provides a definition of an offense, and states specifically what acts constitute it, it will suffice to charge the offense in the language of the statute."

The statute now in force (§ 2280, supra) is in substance a reenactment of the statute of 1843 (R. S. 1843, p. 982, § 103), under which Myers v. State, supra, was decided, and, it will be observed, clearly defines two offenses: (1) Knowingly suffering one's "horse, mare, or gelding to be run in a horse-race on any public highway;" and (2) acting "as a rider in a horse-race on a public highway." State v. Ness (1848), 1 Ind. 64; Robb v. State (1875), 52 Ind. 216.

The affidavit under consideration follows the language of the statute defining the particular offense, to wit, "did then and there unlawfully act as a rider in a certain horse-race along the public highway then and there situate." The description of the highway as being then and there in Hancock county is sufficient. Keith v. State (1883), 90 Ind. 89; State v. Burgett (1849), 1 Ind. 479.

None of the exceptions noticed in Johns v. State, supra, apply here, and we perceive no reason why the case is not fully within the general rule.

The opinion in Myers v. State, supra is expressed in three lines, and may...