Torphy v. State

• Citation: 187 Ind. 73,118 N.E. 355
• Decision Date: 16 January 1918
• Docket Number: No. 23324.,23324.
• Parties: TORPHY v. STATE.
• Court: Indiana Supreme Court

187 Ind. 73

118 N.E. 355

TORPHY

v.STATE.

No. 23324.

Supreme Court of Indiana.

Jan. 16, 1918.

Appeal from Circuit Court, Washington County; Wm. H. Paynter, Judge.

David Torphy was convicted of keeping and operating a place where intoxicants were sold, bartered, and given away, in violation of Burns' Ann. St. 1914, § 8351, and appeals. Reversed, with instructions.

Robert L. Mellen, of Bedford, and Wilber W. Hottel, of Salem, for appellant. Ele Stansbury and Dale F. Stansbury, both of Indianapolis, and Elmer E. Hastings, of Washington, Ind., for appellee.

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 section 8351, Burns 1914. 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, 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 section 2063, cl. 6, Burns 1914, 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...