Voyles v. State
| Decision Date | 05 March 1929 |
| Docket Number | 25,067 |
| Parties | Voyles et al. v. State of Indiana |
| Court | Indiana Supreme Court |
1. INDICTMENT AND AFFIDAVIT---Requirements of Code---Sufficiency.---Under subdivisions 4 and 5 of 2224 Burns 1926, all that our Criminal Code requires in an indictment or affidavit is a statement of facts necessary to show a violation of a criminal statute, clearly set forth in plain and concise language, "with such a degree of certainty that the court may pronounce judgment upon a conviction according to the right of the case." p. 533.
2. INDICTMENT AND AFFIDAVIT---Charging Placing Explosive in River---Surplusage.---An affidavit charging that defendants "unlawfully put into the waters of Blue River," in a named county, in the State of Indiana, a certain explosive to wit, dynamite, and further alleged that said dynamite was not then and there put into said waters for mining or mechanical purposes (2834 Burns 1926), but was so placed with intent to kill and injure fish in said water, was not subject to a motion to quash, although the allegation as to the intent to kill and injure fish was surplusage (Torphy v State, 187 Ind. 73, distinguished). p. 533.
3. EXPLOSIVES---Placing in Waters of State---Affidavit---Charging Intent to Kill Fish.---A charge in an affidavit that the defendants unlawfully placed explosives in one of the rivers of this state with the intent to kill and injure the fish in said river did not inject into the affidavit an independent or collateral fact improper for the jury to consider, although not included in the statute defining the offense (2834 Burns 1926). p. 534.
4. CRIMINAL LAW---Insufficiency of Evidence on Appeal---Appellant's Duty to Point Out Insufficiency.---It is the duty of an appellant who contends on appeal that the verdict against him was not sustained by sufficient evidence to point out to the reviewing court some essential allegation of the indictment or affidavit which is not supported by the evidence. p. 534.
From Orange Circuit Court; James L. Tucker, Judge.
Clayton Voyles and another were convicted of placing dynamite in the waters of a river, and they appeal.
Affirmed.
Elliott & Houston, for appellant.
Arthur L. Gilliom, Attorney-General, and George J. Muller, Deputy Attorney-General, for the State.
Appellants were charged by affidavit and convicted by a jury, on change of venue in the Orange Circuit Court, of using dynamite in the waters of the South Fork of Blue River in Washington County, Indiana, in violation of § 2834 Burns 1926, Acts 1905 p. 584, § 624.
The attorney-general, before filing a brief upon the merits of this cause, moved to dismiss this appeal on the ground that appellants had failed to index their transcript and to make marginal notes in compliance with Rule 3 of this court. Thereafter, upon application, the court permitted appellants to correct these defects, which was accordingly done in substantial compliance with the rule. The motion to dismiss is overruled.
A motion to quash the affidavit and a motion for a new trial were each overruled, and these rulings are assigned as errors.
The point made against the affidavit is that it fails to state facts sufficient to constitute a public offense, in that there is no crime known to the law of using dynamite for the purpose of killing and injuring fish. The statute, § 2834, supra, provides that "Whoever uses dynamite or other explosive in any of the waters of this state, except for mining or mechanical purposes, by special permission of the commissioner of fisheries and game, or his chief deputy, shall, on conviction," etc.
The affidavit, in so far as the same is material here, charged that on April 13, 1924, these appellants "unlawfully put into the waters of the South Fork of Blue River, in Washington County, in the State of Indiana, certain explosive matters, to wit: dynamite; that said dynamite was not then and there put into the...
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