Volderauer v. State

• Decision Date: 30 April 1924
• Docket Number: 24,387
• Citation: 143 N.E. 674,195 Ind. 415
• Parties: Volderauer v. State of Indiana
• Court: Indiana Supreme Court

143 N.E. 674

195 Ind. 415

Volderauer v. State of Indiana

No. 24,387

Supreme Court of Indiana

April 30, 1924

Rehearing Denied November 21, 1924.

1. CRIMINAL, LAW.---Appeal.---Assignment of Error.---Sufficiency of Affidavit.---An assignment of error that the facts stated in the affidavit do not constitute a public offense raises no question for review on appeal. p. 418.

2. STATUTES.---Title.---Subject Must be Expressed.---It is only the subject of the act and not the matters properly connected therewith that need be expressed in the title. p. 419.

3. INTOXICATING LIQUORS.---Statute Defining Offenses.---Sufficiency of Title.---Acts 1923 p. 108, ch. 34 which is entitled "An act concerning intoxicating liquors" is a sufficient compliance with Const. 19, Art 4, since that aims only at titles narrower than the enactment; the unnecessary breadth of the title is ordinarily no objection to it. p. 419.

4. INTOXICATING LIQUORS.---Statute.---Transportation Declared a Felony.---Surplusage.---That portion of Acts 1923 p. 108, ch 34 which relates to the transportation of liquor in a vehicle without the consent of the owner, or when it is mortgaged property, or in which there are firearms, may be regarded as surplusage for it adds nothing to the felony of transportation of liquor in a vehicle. p. 420.

5. INTOXICATING LIQUORS.---Transportation as Felony.---Unnecessary to Negative Proviso.---An affidavit charging the commission of the felony of transportation under Acts 1923 p. 108, ch. 34 need not negative the proviso that such prohibition shall not affect the transportation of intoxicating liquor for such purposes or uses as are not prohibited by existing law. p. 420.

6. CRIMINAL LAW.---New Trial.---Statutory Grounds.---Insufficient Assignments.---Grounds for new trial that the "Decision and judgment of the court is not sustained by sufficient evidence"; and "The decision and judgment of the court is not supported by the evidence"; and "The decision and judgment of the court is clearly against the weight of the evidence"; and "The judgment is contrary to the law and the evidence" do not state any of the statutory reasons for new trial (2158 Burns 1914). p. 421.

7. CRIMINAL LAW.---New Trial.---Grounds.---Construction to Come Within Statute.---The ground for new trial that "The decision of the court is contrary to law" is only sufficient under the statute (2158 Burns 1914) because the word "decision" will be construed as meaning the same as the word "finding" in the statute. p. 422.

8. INTOXICATING LIQUORS.---Transportation.---Sufficiency of Evidence to Convict.---Evidence that defendant was discovered driving his automobile on a highway and that contained therein were five 5-gallon jugs of white mule whisky and two loaded revolvers, was sufficient to authorize a finding of guilty of transporting liquor unlawfully; if defendant was transporting the liquor for a lawful purpose, that was a matter of defense. p. 422.

9. CRIMINAL LAW.---Appeal.---Assignment of Error.---Failure to Rule Not Proper Assignment.---Failure of the court to rule on a motion for leave to withdraw plea of guilty and refile motion to quash is not a good assignment of error. p. 423.

10. CRIMINAL LAW.---Withdrawal of Plea.---Presumption from Action of Court.---A defendant entered a plea of not guilty and some days later filed a motion to quash the affidavit without withdrawing his plea, but the court entertained the motion to quash and overruled it; defendant renewed the motion after judgment, without a ruling by the court; held, that even if seasonably made and overruled, the defendant would not have been harmed since he will be treated as having withdrawn his plea for the purpose of the motion. p. 423.

11. CRIMINAL LAW.---Appeal.---Assignment of Error.---Ruling on Motion to Direct Verdict.---An objection that the court erred in overruling a motion to direct a verdict should be assigned as ground for new trial and not as an independent assignment of error. p. 423.

12. CRIMINAL LAW.---Appeal.---Assignment of Error.---Ruling on Motion to Return Evidence.---The overruling of a motion to return confiscated liquor to the defendant, made before trial, should not be made a separate assignment of error but should be presented to the trial court as a ground for new trial under the first cause set out in 2158 Burns 1914. p. 423.

13. CRIMINAL LAW.---Appeal.---Assignment of Error.---Constitutionality of Statute.---An assignment of error that an affidavit is based on an act of the legislature which is unconstitutional and void is improper and raises no question. p. 424.

14. CRIMINAL LAW.---New Trial.---Insufficiency of Evidence Should be Made Ground for New Trial.---That the officers who arrested defendant charged with transporting liquor in an automobile, searched his automobile without a warrant, cannot be urged for the first time on appeal under the specification for new trial that the finding of the court is contrary to law; objection should be made to the evidence when offered and the rulings thereon assigned as causes for new trial. p. 424.

From Putnam Circuit Court; James P. Hughes, Judge.

Frank Volderauer was convicted of a violation of the prohibition law and he appeals.

Affirmed.

Edward W. Little and Earl W. Little, for appellant.

U. S. Lesh, Attorney-General, and Mrs. Edward Franklin White, Deputy Attorney-General, for the State.

Gause J. Myers, J., absent.

OPINION

Gause, J.

Appellant was convicted in the court below upon an affidavit which charged him with unlawfully transporting intoxicating liquor in an automobile, and that he had and kept a loaded gun in said automobile.

Said affidavit is predicated upon chapter 34 of the acts of 1923 (Acts 1923 p. 108).

Said act, including the title, but omitting a repealing clause and an emergency clause, is as follows: "An act concerning intoxicating liquors, and declaring an emergency.

"Section 1. That any person who shall transport intoxicating liquor in any wagon, buggy, automobile, water or air craft, or other vehicle or who shall transport intoxicating liquor in any such vehicle when such vehicle is not owned by said person, or without the consent of the owner of such vehicle, or when such vehicle is mortgaged property, or who shall transport intoxicating liquor in any such vehicle if there be in, or upon such vehicle or upon any person therein any firearms or guns, shall be guilty of a felony and upon conviction shall be imprisoned not less than one year nor more than two years, and fined in a sum not exceeding one thousand dollars ($ 1,000). Provided, however, That nothing herein contained shall affect the transportation of intoxicating liquor for such purposes or uses as are not prohibited by existing law. And the court trying cases under this section shall not have the power to suspend the sentence provided herein, either upon a conviction or plea of guilty, whenever the defendant shall have been previously convicted or entered a plea of guilty under the provision of this act."

Appellant's first assignment of error is that the facts stated in the affidavit do not constitute a public offense. Since the enactment of 1911 (Acts 1911 p. 415, § 348 Burns 1914), such an assignment of error has been held to raise no question. Robinson v. State (1916), 184 Ind. 208, 110 N.E. 980; Boos v. State (1914), 181 Ind. 562, 105 N.E. 117; Robinson v. State (1912), 177 Ind. 263, 97 N.E. 929.

Appellant's second assignment of error is that the court erred in overruling appellant's motion to quash the affidavit. Appellant's contention under this assignment is that the title of said act is not sufficient to cover the matters contained in the body of the act. It is also contended that said affidavit is defective because it does not negative the exception contained in the proviso of said statute.

As to the first contention, it should be remembered that it is only the subject of the act and not the matters properly connected therewith that need be expressed in the title. Art. 4, § 19, Indiana Constitution; Baldwin v. State (1923), 194 Ind. 303, 141 N.E. 343.

The title of the act is, "An act concerning intoxicating liquors, and declaring an emergency."

In the case of State v. Young (1874), 47 Ind. 150, where the court was considering whether an act which in the title referred to the sale of intoxicating liquors, was broad enough to include a provision relating to public intoxication, the court said: "If the act bore a more general title, indicating that the subject was intoxicating liquors in the abstract, such as 'an act concerning intoxicating liquors,' no reason is perceived why legislation inhibiting the excessive use of them might not be within the title."

The Constitution only requires that a proper subject of legislation should be expressed in the title, and not the particular features or details of the law. State v. Paris (1913), 179 Ind. 446, 101 N.E. 497; Bright v. McCullough (1866), 27 Ind. 223; Brandon v. State (1861), 16 Ind. 197. A very general statement of the character of an act may be sufficient to call attention to the nature of the enactment. Board, etc., v. Albright (1907), 168 Ind. 564, 81 N.E. 578.

The provision of our Constitution above referred to aims only at titles narrower than the enactment. The unnecessary breadth is ordinarily no objection to it. Moore-Mansfield, etc., Co. v. Indianapolis, etc., R. Co. (1913), 179 Ind. 356, 101 N.E. 296, 44 L.R.A. (N.S.) 816, Ann. Cas. 1915D 917.

The title to the law in question expresses the general subject of the act and it is then proper to embrace in the act any matters fairly and naturally germane to the subject of intoxicating liquors. It would hardly be contended that under a title such as we are now considering it would not...