James v. State

Nov 25, 1919
No. 23,543
Reporters:
, ,
Before:
Willoughby
Willoughby, J.

— Thе appellant appeals from a con- . viction in the criminal court of Marion county. The case was first tried in the city court of the city of Indianapolis, and from a conviction in that court appellant appealed to the Marion Criminal Court, where a jury trial was had, and the defendant found guilty on . the second and third counts of thе affidavit, and his punishment fixed at -imprisonment in the Marion county jail for a period of sixty days and a fine of $200. A separate verdict was returned on each count and the same punishment fixed. Judgment was rendered on both verdicts. No evidеnce is set out in the record and the appellant, in his brief, says that he raises no question on the instructions or evidеnce in the case.

The defendant moved to quash each count of the affidavit for the reason that neithеr of said counts state *581facts sufficient to constitute a public ‍‌​​‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌‌​‌​‌‌​​​‌​​‌‌​‌‌‌​​​‌​​‌​‌​‍offense. No other reason is assigned.

1. The seсond count is based on §4 of chapter 4, Acts 1917 p. 15, which provides that “after the second day of -April, 1918, it shall be unlawful fоr any person to manufacture, sell, barter, exchange, give away, furnish or otherwise dispose of any intoxicаting liquor, or to keep any intoxicating liquor with intent to sell, barter, exchange, give away, furnish or otherwise dispose of the same, except as in this act provided.” This second count of the affidavit charges that Louis James, “on the 25th day of November, 1918, at the city of Indianapolis, in Marion county, in the state of Indiana, did then and there unlawfully keeр intoxicating liquor, to wit, whiskey, gin, wine and beer with intent then and there to sell, barter, exchange, give away, furnish and otherwise disрose of the same to persons to the affiant unknown within the state.” This is a sufficient charge. It was not necessary to state the exception-contained in the proviso. State v. Sarlin (1919), 188 Ind. 359, 123 N. E. 800.

2. The third count of the affidavit is based on §20 of chaptеr 4, Acts 1917, which provides that: “Any room, house, building, boat, structure or place of any kind where intoxicating- liquor is sold, manufaсtured, bartered or given away in violation of law, or where persons, are permitted to resort for the purрose of drinking intoxicating liquor as a beverage, or any place, building or club where such liquor is kept to be drunk as а beverage by the members thereof or any other persons, or any place where such liquor is kept for sаle, barter, or delivery in violation of the laws of this state, and all intoxicating liquor and all property kept in and used in maintaining such a place, are hereby declared to be a common nuisance; and any person whо maintains or assists in maintaining such common nuis*582anee, shall be guilty of a misdemeanor,” etc. The third count, after stating the venue, charges that the defendant “did then and there unlawfully maintain and assist in maintaining a common nuisance, to wit, a roоm and place where intoxicating liquors were then and there kept for sale, barter, ‍‌​​‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌‌​‌​‌‌​​​‌​​‌‌​‌‌‌​​​‌​​‌​‌​‍and delivery in violation оf the laws of this state, and where persons were then and there permitted to resort for the purpose of drinking said intoxicating liquors as a beverage and said intoxicating liquor, to wit: whiskey, gin, wine and beer kept in and used in maintaining said place.”

Appellant claims that neither of the counts contain an allegation excluding the home where he had a right to have liquor and had a right to dispense it to his guests.

Appellant seems to overlook the fact that thе law does not authorize him to keep liquor in his home for sale, barter, or exchange, or keep it in his home with intent to sell, barter or otherwise dispose of the same contrary to law.

3. 4. Appellant also claims that chapter 4 of the acts of 1917 is unconstitutional, in that it violates §19, Art. 4, of the Constitution of Indiana, which provides that: “Every act shаll embrace but one subject and matters properly connected therewith, which subject shall be expressеd ‍‌​​‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌‌​‌​‌‌​​​‌​​‌‌​‌‌‌​​​‌​​‌​‌​‍in the title. But if any subject shall be embraced in an act which shall not be expressed in the “title, such- act shall be void only as to so much thereof as shall not be expressed in the title.” This court has decided that question adversely to аppellant’s contention. Schmitt, Supt., v. F. W. Cook Brewing Co. (1918), 187 Ind. 623, 120 N. E. 19, 23. The affidavit is not defective on account of its failure to show the official сharacter of the officer who administered the oath. State v. Osborn *583(1900), 155 Ind. 385, 391, 58 N. E. 491; Brooster v. State (1860), 15 Ind. 190.

The court did not err in overruling appellant’s motion tо quash each count of the affidavit.

Appellant asserts that the court erred in overruling his objection to the rendition of judgment against him. The appellant’s brief discloses that the objections of appellant to the rendition of the judgments were set forth in two motions filed in the trial court, in which the reason is stated that the jury signed two separate verdicts finding the ‍‌​​‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌‌​‌​‌‌​​​‌​​‌‌​‌‌‌​​​‌​​‌​‌​‍defendant guilty of two separate and distinct charges in the affidavit, and that one of said verdicts was nоt properly returned into court, and that the verdict on the second count of the affidavit was not returned and read in open court, and that the verdict on the second count of the affidavit was discovered after the jury had been discharged.

The record shows this statement to be incorrect, and affirmatively shows that each of said vеrdicts was duly returned in open court. The statement on that subject in the record is as follows: “The jury retire to delib-

erate on their verdict, being in charge of Clarence W. Cleg’g, a duly sworn bailiff of this court, and after a time passed in delibеration, the jury, accompanied by the bailiff, returned into open court the following verdicts,” and then, following this, each verdict is set out in full in the record.

No other question is presented in this appeal. No ‍‌​​‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌‌​‌​‌‌​​​‌​​‌‌​‌‌‌​​​‌​​‌​‌​‍error being shown, the judgment is affirmed.

Note. — Reported in 125 N. E. 211.