Ellis v. State, 180 Ind. 270

180 Ind. 270 | Ind. | 1913

Erwin, J.

This was a prosecution by the State of Indiana upon indictment against appellant for the alleged violation of a portion of §8351 Burns 1908, Acts 1907 p. 689, commonly known as the “Blind Tiger” law.

The indictment in this cause, omitting the formal parts reads as follows: “The Grand Jurors of Delaware County, good and lawful men, duly and legally empanelled, charged and sworn to inquire into felonies and certain misdemeanors in and for the body of said county of Delaware, in the name and by the authority of the State of Indiana, on their oaths present that one George Ellis, on the 24th day of November, 1911, at and in the county of Delaivare, State of Indiana, did then and there unlawfully keep, run and operate a place where intoxicating liquors were then and there unlawfully bartered, sold and given away in violation of the laws of said State of Indiana, and was then and there found in possession of a large quantity of intoxicating liquors for the purpose of then and there unlawfully bartering and giving said liquors away in violation of the laws of the State of Indiana. ’ ’

To this indictment, the defendant, by his attorneys moved to quash without assigning any reason why the same was defective, which motion to quash was, by the court, overruled, to which ruling of the court the defendant, at the time, excepted. The defendant, being duly arraigned, entered a plea of not guilty. Trial was had by jury, which resulted in the conviction of the defendant and a fine assessed in the sum of one hundred and seventy-five dollars with imprisonment in the county jail for a period of fifty days. The defendant filed a written motion for a new trial assigning therein ninety-six reasons why the court should grant a' new trial. This motion was by the court, overruled, to which ruling of the court, the defendant at the time excepted. The defendant thereupon filed his motion in arrest of judgment and assigned as reasons therefor, that the indictment did not state facts sufficient to constitute a public offense, which motion in arrest of judgment was, by the court, overruled, to which ruling of the court the defendant at the time excepted. The court thereupon entered judgment in said cause, assessing a fine of one hundred and seventy-five dollars, and that the defendant be committed to the county jail for a period of fifty days, and that he pay the costs of the prosecution, to which judgment of the court, defendant, at the time excepted, and prayed an appeal to this court.

The defendant, by his assignment of errors has undertaken to present to this court three questions, viz., (1) ‘ ‘ The court erred in overruling appellant’s motion to quash the indictment therein.” (2) “The court erred in overruling appellant’s motion for a new trial.” (3) “The court erred in overruling appellant’s motion in arrest of judgment.”

1.

No question on the motion to quash is presented to this court, for the reason that the record does not disclose that the motion was made upon the grounds provided by statute, or that any such grounds were presented to the trial court by the motion. Leach v. State (1912), 177 Ind. 234, 97 N. E. 792 and eases there cited.

2.

No question is presented on the motion for a new trial, for the reason that the motion, or the substance thereof is not set out in appellant’s brief, and the same is waived. Barnett v. State (1912), 177 Ind. 461, 97 N. E. 530, and cases there cited. The only other question presented by the appellant, is upon his motion in arrest of judgment, which motion, omitting the formal parts is as follows: “The defendant, George Ellis, in the above entitled cause, moves the court for an arrest of judgment in said cause, for the following reasons: First: That the alleged facts stated in the indictment, do not constitute a public offense under the laws of the State of Indiana. ’ ’

3.

It is urged by the appellant that the indictment, by reason that it charges the appellant with unlawfully keeping, running and operating a place where intoxicating liquors were sold in violation of law of this State; and with keeping in his possession, intoxicating liquors, two criminal offenses are charged, and it is therefore void for duplicity. This court in Yazel v. State (1908), 170 Ind. 535, 84 N. E. 972, had under consideration an affidavit under the same statute, drawn in a similar manner to the one at bar, and the decision of this court in that case was adverse to the contention of the appellant. We think that case decisive of the question in this case. The court did not err in overruling appellant’s motion in arrest of judgment.

Note. — Reported in 101 N. E. 626. See, also, under (1) 12 Cyc. 864; (2) 2 Cyc. 1013; 12 Cyc. 877; (3) 22 Cyc. 376.

Although not required to do so under the briefs presented in this ease, this court has made a careful examination of all the pleadings, the evidence given in the cause, and the instructions of the court, and we are of the opinion that the defendant has had a fair and impartial trial and that the proper result has been reached, and that no reversible error was committed.

Judgment affirmed.