Torphy v. State

Decision Date16 January 1918
Docket Number23,324
PartiesTorphy v. State of Indiana
CourtIndiana Supreme Court

From Washington Circuit Court; William H. Paynter, Judge.

Prosecution by the State of Indiana against David Torphy. From a judgment of conviction, the defendant appeals.


Robert L. Mellen and Wilber W. Hottel, for appellant.

Ele Stansbury, Attorney-General, Elmer E. Hastings, Dale F Stansbury and Marshall Wollery, for the state.

Spencer C. J. Myers, J.


Spencer, C. J.

Appellant was tried and convicted on an indictment which charges that on a certain fixed occasion, he kept and operated a place where intoxicating liquors were sold, bartered and given away in violation of § 8351 Burns 1914, Acts 1907 p. 689. Following the statement of this charge, the indictment further alleges that appellant has previously been convicted of a similar offense, although the statute on which this prosecution is based makes no provision concerning a second or subsequent conviction on the charge of keeping or operating a place where intoxicating liquors are sold, bartered or given away in violation of law. Appellant filed a motion to strike from the indictment such allegations as referred to the prior conviction and also moved to quash the indictment because of their presence therein. These motions were each overruled. Subsequently, the prosecuting attorney, in making his opening statement to the jury, was permitted to read the entire indictment, over appellant's objection to the reading of so much thereof as referred to the former conviction. Appellant then moved to set aside the submission of the cause and to discharge the jury because of the reading of that portion of the indictment, which motion was also overruled. The several rulings thus indicated, and others which present the same issue, are each challenged by this appeal and form the basis for appellant's contention that he was seriously prejudiced through this indirect suggestion to the jury as to his former conviction.

It is conceded that as the averments complained of do not, in this case, legally aggravate the offense charged, they constitute surplusage and form no proper part of the indictment, but appellee contends: (1) That under the decision in Gallaher v. State (1885), 101 Ind. 411, appellant's motion to strike out must be rejected as unknown to the criminal practice; (2) that in view of the express provisions of § 2063, cl. 6, Burns 1914, § 1756 R. S. 1881, a motion to quash an indictment on account of surplusage must always be overruled; and (3) that as the indictment in a criminal prosecution is an essential part of the state's case, it is the duty of the prosecuting attorney to read the same to the jury in its entirety. § 2136, cl. 1, Burns 1914, Acts 1905 p. 584, 641.

The decision in Gallaher v. State supra, apparently supports the first ground of appellee's contention, but we cannot assent to all of the reasoning in that case. It is true that mere surplusage which does not affect substantial rights of the defendant can do no harm and...

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