Wilson v. State, 29699
| Decision Date | 16 October 1959 |
| Docket Number | No. 29699,29699 |
| Citation | 240 Ind. 66,161 N.E.2d 484 |
| Parties | Russell WILSON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Rufus C. Kuykendall, Indianapolis, for appellant.
Edwin K. Steers, Atty. Gen., Merl M. Wall, Asst. Atty. Gen., for appellee.
This is an appeal from a judgment of conviction in the Marion County Criminal Court, No. 1, on a charge of violation of the 1935 Narcotic Act, Acts 1935, ch. 280, § 2, p. 1351, being § 10-3520, Burns' 1956 Replacement.
The affidavit charging the offense, omitting the formal parts thereof, reads as follows, to-wit:
'Be It Remembered. That, on this day before me, John G. Tinder Prosecuting Attorney of the Nineteenth Judicial Circuit, personally came William Owen * * * who being duly sworn, upon his oath says that Russell Wilson * * * on or about the 6th day of March A.D., 1958, at and in the County of Marion in the State of Indiana, did then and there unlawfully possess a certain narcotic drug, to-wit: * * * Heroin, a derivative of Opium, at a time and place when said possession and sale was not authorized by the laws of the United States and the laws of the State of Indiana, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.
'/s/ William Owen
'Subscribed and sworn to before me, this 12th day of March, A. D. 1958 * * *.
'John G. Tinder,
Prosecuting Attorney
Nineteenth Judicial Circuit
/s/ By William T. Sharp
Deputy Prosecuting Attorney'.
Thereafter on April 24, 1958, a trial was had, by the court, without the intervention of a jury, resulting in the conviction of the defendant. At the conclusion of all the evidence the defendant moved for a discharge, said motion being overruled by the court.
On April 25, 1958, defendant filed his motion for a new trial, said motion being overruled on May 12, 1958.
The appellant assigns as error the action of the trial court (1) in overruling appellant's motion to quash the indictment herein, and (2) in overruling appellant's motion for a new trial.
Appellant's motion for a new trial contains six specifications, only two of which we deem properly before this court for consideration, viz.:
'1. That the decision of the court is contrary to law.
The statute on which this prosecution was based, Acts 1935, ch. 280, § 2, p. 1351, being § 10-3520, Burns' 1956 Replacement, reads as follows:
'Acts prohibited.--It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, compound or use any narcotic drug or drugs except as authorized in the laws of the United States or of the state of Indiana, or for any person to be found in a public place under the influence of narcotic drugs.'
Acts 1935, ch. 280, § 18, p. 1351, being § 10-3536, Burns' 1956 Replacement, provides further,
'Exceptions and exemptions negatived in pleadings.--In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of this act,...
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White v. State, 2--673A142
...the substance is a narcotic as a matter of law. See, Patterson v. State (1970), 255 Ind. 22, 262 N.E.2d 520 (heroin); Wilson v. State (1959), 240 Ind. 66, 161 N.E.2d 484 Winfield v. State (1967), 248 Ind. 95, 223 N.E.2d 576 (marijuana, within the statutory definition at the time); Turner v.......
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