Wischmeyer v. State

• Decision Date: 19 February 1929
• Docket Number: No. 24507.,24507.
• Citation: 200 Ind. 512,165 N.E. 57
• Parties: WISCHMEYER v. STATE.
• Court: Indiana Supreme Court

200 Ind. 512

165 N.E. 57

WISCHMEYER

v.STATE.

No. 24507.

Supreme Court of Indiana.

Feb. 19, 1929.

Appeal from Criminal Court, Marion County; James A. Collins, Judge.

Albert Wischmeyer was convicted of the unlawful possession of a still for the manufacture of intoxicating liquor, and he appeals. Reversed.

Clyde P. Miller, of Indianapolis, for appellant.

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

TRAVIS, J.

Appellant was charged by count 1 of an affidavit that, on July 2, 1923, he unlawfully sold intoxicating liquor, and alleges a former conviction, under section 1, c. 23, Acts 1923. By the second count of the affidavit, he was charged with unlawfully possessing a still for the manufacture of intoxicating liquor, under chapter 33, Acts 1923. In other counts of the affidavit he was charged with other violations of the laws concerning intoxicating liquors.

Appellant moved to quash the affidavit, for the causes that the facts stated in the affidavit do not state a public offense, and that the offense is not stated with sufficient certainty, for the sole reason that it was not approved by the prosecuting attorney as required by law (Acts 1905, p. 584, § 119; section 2151, Burns 1926), which motion was overruled. The plea was not guilty. Trial by the court, which rendered judgment upon its finding of guilty of the charge in count 2. A motion for a new trial was overruled, after which the court ordered that appellant's automobile, which had been seized by the officer, be confiscated and sold, as provided by law (section 5, c. 250, Acts 1921), to which order appellant filed written exceptions.

It is necessary only to give attention to the alleged errors which are predicated upon the overruling of the motion to quash, and the exceptions to the order to confiscate and sell the automobile.

[1][2] The affidavit which charged the offenses is entitled in and was first filed in the city court of the city of Indianapolis, and was thereafter filed in the Marion criminal court. The omission of the approval of the affidavit by the prosecuting attorney is confessed by appellee in its brief, but it is sought to avoid such omission for the sole reason that, notwithstanding there is no transcript from the city court to the court which tried the case, such affidavit so filed in the city court is sufficient even if not indorsed with the approval of the prosecuting attorney, where transferred by appeal to the Marion criminal court, and cites as authority for the proposition Parish v. State (1923) 194 Ind. 44, 141 N. E. 786. The crime charged in the case cited was a misdemeanor, of which the city court had jurisdiction to try and fully determine. The affidavit in the case at bar charged felonies, which the city court of the city of Indianapolis did not have jurisdiction to...