Volderauer v. State

Citation143 N.E. 674,195 Ind. 415
Decision Date30 April 1924
Docket NumberNo. 24387.,24387.
PartiesVOLDERAUER v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Putnam County; James P. Hughes, Judge.

Frank Volderauer was convicted of transporting intoxicating liquor, and appeals. Affirmed.Little & Little, of Indianapolis, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward F. White, Deputy Atty. Gen., for the State.

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.”

[1] 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 (1915) 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.

[2] 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. Indiana Constitution, § 19, art. 4; Baldwin v. State (Ind. Sup. 1923) 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 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.

[3] 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 be proper to legislate in regard to the sale of intoxicating liquors. It would be just as proper, under the same title to legislate in regard to the transportation of intoxicating liquors. The transportation of intoxicating liquors is a matter properly connected with and concerning intoxicating liquors. The title of said act is sufficient to embrace the matter contained in the body.

All of the provisions in the body of said act relate to and prohibit the transportation of intoxicating liquor in vehicles. After prohibiting the transportation of such liquor in any wagon, buggy, automobile, water or air craft, or other vehicle, it then prohibits the transporting of such liquor in any such vehicle, without the consent of the owner, or when it is mortgaged property, or in which there are firearms or guns. These latter provisions add nothing to the statute and make no change in the degree of the crime nor measure of punishment. They may be treated as surplusage, for the crime first defined must be charged and proven, to make one guilty of any of the latter provisions. It may be that, if the indictment or affidavit charges any of these latter elements, it would be necessary to prove the same as being matters of description of the means used, but as to this we decide nothing.

The affidavit in this case charged and the evidence proved that appellant had a loaded gun in said car.

[4] As to the appellant's second objection to the affidavit that it does not negative the exception contained in the proviso, which is as follows:

“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,”

-the rule is well established in this state that where an offense is created by statute and an exception is made, either by another statute, or by another substantive clause of the same statute, it is not necessary for the prosecutor, either in the indictment or by evidence, to show that the defendant does not come within the exception but it is for the defendant to prove the affirmative, and which he may do under the plea of not guilty. Hewitt v. State (1889) 121 Ind. 245, 23 N. E. 83;Crawford v. State (1900) 155 Ind. 692, 57 N. E. 931;State v. Closser (1912) 179 Ind. 230, 99 N. E. 1057;Asher v. State (Ind. Sup. 1924) 142 N. E. 407.

The affidavit in this case charged the offense in the language of the statute and that the transportation was unlawful, and it was not necessary to anticipate nor negative the exception contained in the subsequent clause.

[5] The third assignment of error is that the court erred in overruling appellant's motion for a new trial. The only grounds stated in said motion for a new trial were as follows:

(1) Decision and judgment of the court is not sustained by sufficient evidence.

(2) The decision of the court is contrary to law.

(3) The decision and judgment of court is not supported by the evidence.

(4) The decision and judgment of the court is clearly against the weight of the evidence.

(5) The judgment is contrary to the law and evidence.”

Each of the above, except the second cause stated, have been held not to be sufficient to raise any question, for the reason that they do not state any of the reasons set out in the statute providing for a new trial. Section 2158, Burns' 1914; Lynch v. Milwaukee, etc., Co. (1903) 159 Ind. 675, 65 N. E. 1025;Hall v. McDonald (1908) 171 Ind. 9, 85 N. E. 707;State ex rel. v. Davisson (1910) 174 Ind. 705, 93 N. E. 6;Utley v State (Ind. Sup. 1924) 142 N. E. 377. And the second cause stated is only sufficient because the word “decision” will be construed as meaning the same as the word “finding” used in the statute. Parkison v. Thompson (1905) 164 Ind. 609, 73 N. E. 109, 3 Ann. Cas. 677.

[6] Appellant insists that there was no evidence showing him guilty of transporting intoxicating liquor in violation of the statute and for that reason the finding of the court is contrary to law. The statute makes the transporting of intoxicating liquor in a vehicle a felony. The evidence showed appellant was driving his automobile along a public highway in Putnam county late at night; that he lived in Indianapolis and was traveling in that direction; that he had five five-gallon jugs of white mule whisky in said car, and also...

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