State v. New

• Decision Date: 16 November 1905
• Docket Number: No. 5,924.,5,924.
• Citation: State v. New, 36 Ind.App. 521, 76 N.E. 181 (Ind. App. 1905)
• Parties: STATE v. NEW.
• Court: Indiana Appellate Court

36 Ind.App. 521

76 N.E. 181

STATE

v.NEW.

No. 5,924.^*

Appellate Court of Indiana, Division No. 2.

Nov. 16, 1905.

Appeal from Circuit Court, Hancock County; E. W. Felt, Judge.

Thomas H. New was convicted of acting as a rider in a horse race on a public highway.On appeal to the circuit court the affidavit was quashed, and the state prosecutes a further appeal.Case transferred to the Supreme Court.

C. W. Miller, W. C. Geake, C. C. Hadley, L. G. Rothschild, and C. L. Tindall, for the State.W. A. Hough, for appellee.

ROBY, J.

This proceeding was instituted before the mayor of the city of Greenfield, a trial and conviction following, from which judgment the appellee appealed to the circuit court, where he made a motion to quash the affidavit for want of facts.This motion was sustained, and the state appeals.

The affidavit, omitting formal parts, is as follows: “On or about the - day of February, in the year 1905, at the county of Hancock and state of Indiana, one Thomas H. New, late of said county, did then and there unlawfully act as a rider in a certain horse race on the public highway, then and there situate, contrary, etc,”The statute on which the affidavit was based, is as follows: “Whoever knowingly suffers his horse, mare or gelding to be run in a horse race on any public highway in this state, and whoever acts as a rider in any such race, on being convicted, shall be fined,” etc.Burns' Ann. St. 1901, § 2280.The affidavit follows the language of the statute, which defines the offense.For the owner of the horse to knowingly suffer it to run in a race on a public highway, is one offense, and to act as a rider in a horse race run on said highway, is a separate and distinct one.State v. Ness, 1 Ind. 64;Robb v. The State, 52 Ind. 216.

The affidavit, following the language of the statute, charges appellee with unlawfully acting as a rider in a certain horse race on a public highway situate in Hancock county, at the time stated.It is sufficient, where the offense is defined by statute, to follow the language of the statute in the indictment.State v. Smith, 7 Ind. App. 166, 34 N. E, 127(trespass upon land);State v. Allen, 12 Ind. App. 528, 40 N. E. 705(selling liquor to a minor);Howell v. State, 4 Ind. App. 148, 30 N. E. 714(selling liquor to be drunk on premises);Lay v. State, 12 Ind. App. 362, 39 N. E. 768(desecrating cemetery);State v. Beach, 147 Ind. 74, 46 N. E. 145, 36 L. R. A. 645(fraudulently receiving deposits);Ritter v. State, 111 Ind. 824, 12 N. E. 501(embezzlement by employé).No reason is known for making an exception to the general rule, where the offense charged is based upon section 2280, supra.

The time is sufficiently stated.Section 1807, Burns' Ann St. 1901.The description of the highway as being then and there situated in Hancock county is also sufficient.Keith v. State, 90 Ind. 89;State v. Burgett, 1 Ind. 479;State v. Armstrong, 3 Ind. 139.Minor circumstances, which are not vital elements of the offense, do not need to be set out in an indictment State v. Allen, supra;Fisher v. State, 2 Ind. App. 365, 28 N. E. 565;State v. Hogreiver, 152 Ind. 652, 53 N. E. 921, 45 L. R. A. 504;Pemberton v. State, 85 Ind. 507.

The action of the lower court was evidently based upon the decision in Myers v. State, 1 Ind. 251.The Attorney General seeks to differentiate that case from the one at bar by the fact that the statute then in force was not identical with section 2280, supra.The act of 1848 was in terms as follows: “Any person who shall knowingly suffer his horse, mare or gelding, to be...