192 Ind. 632 | Ind. | 1922
Appellant was convicted of having violated the Prohibition Law of Indiana by making intoxicating liquor, keeping such liquor in his possession with intent to sell and otherwise dispose of it to persons unknown, and maintaining a nuisance by keeping a room where such liquors were so kept for sale. Each of the three counts of the affidavit on which he was convicted further alleged that twice before, on dates named, appellant had. been convicted of violating the provisions of the Prohibition Law, therein described. The affidavit was sworn to before the prosecuting attorney, who certified that fact, but without dating his certificate or affixing his seal. The record shows that it was filed in the city court fifteen days after the date on which it alleged, and the evidence tended to show, the offense was committed. The jury returned a verdict in four
Appellant filed a motion for a venire de novo, alleging that the verdict and each paragraph of it was so uncertain and defective that judgment could not be rendered upon’ it, which motion was overruled and he excepted. He then filed his motion for a new trial, alleging, among other causes, that certain errors were committed in giving and refusing instructions, and that the verdict was contrary to law. That motion was overruled and he excepted. The court rendered judgment that appellant, “make his fine to the State of Indiana in the penal sum of $100, that he be imprisoned in the Indiana State Farm for a term of sixty days, and that he pay and satisfy all the costs and charges herein as to each count, two and three of the affidavit.” To this judgment and sentence the court added the following: “And it is further ordered and adjudged by the court that the defendant upon the verdict of the jury as to the third conviction be fined in the sum of $250, that he be imprisoned on the Indiana State Farm for a term of ninety days, and that he pay all the costs and charges herein.”
The motion in arrest of judgment seems to have been filed after final judgment had been rendered. If so, it came too late. Smith v. State, ex rel. (1894), 140 Ind. 340, 36 N. E. 708; Id. (1894), 140 Ind. 343, 350, 39 N. E. 1070; Ewbank’s Manual (2d ed.) §116c; Ewbank, Criminal Law §586. Moreover, it was not based on the insufficiency of the facts stated in the affidavit to constitute a public offense, nor on a claim that the offense charged was not within the jurisdiction of the court. Pittsburgh, etc., R. Co. v, State (1912), 178 Ind. 498, 501, 99 N. E. 801; Ewbank, Criminal Law §§586, 663.
The failure of the prosecuting attorney before whom the affidavit was sworn to date his jurat was not a fatal defect. Ross v. State (1893), 9 Ind. App. 35, 36, 37, 36 N. E. 167. Neither was the omission of his seal. Roberts v. State (1921), 190 Ind. 232, 130 N. E. 125, 126.
Construed in connection with the statute (§8356d Burns’ Supp; 1921, Acts 1917 p. 15, §4) which forbids any person to manufacture, sell or otherwise dispose of, or keep with intent to sell or dispose of, any intoxicating liquor, under penalty of a fine of not less than $100 nor more than $500 and imprison
But the only public offenses charged against appellant, for which he was on trial, were that he had violated §4 of the Prohibition Law (Acts 1917 p. 15, supra) in two particulars, by manufacturing intoxicating liquor and by keeping it with intent to sell and otherwise dispose of it, and had violated §20 (Acts 1917 p. 15, supra) by keeping á room where intoxicating liquor was kept for sale, etc., and that he had done so after having been twice convicted of violations of the Prohibition Law. The first part of the verdict having found him guilty on each count and fixed his punishment, the further finding that he was “guilty of the third conviction of violating the provisions of the prohibition law” was a nullity. That was not a separate offense, but was only a circumstance which, if proved, should
The section of the Prohibition Law suggested by counsel as the basis for this latter part of the judgment (§835611 Burns’ Supp. 1921, Acts 1917 p. 15, §38) only prescribed a penalty for “violations of the act where the punishment therefor is not specifically provided” by such act; not in cases where the statute has specifically fixed the exact penalty by the section which defines and forbids the crime, as in §§4 and 20, supra,.
Appellant’s motion for a new trial presents no question as to the giving or refusal of instructions, because the instructions given, and those asked and refused, and the exceptions taken, if any, have not 'been made part of the record by a bill of exceptions. §§2163, 2165 Burns 1914, Acts 1905 p. 584, §§287, 289; Tribbey v. State (1918), 189 Ind. 205, 207, 126 N. E. 481; Donovan v. State (1916), 185 Ind. 15, 16, 111 N. E. 433; Messel v. State (1911), 176 Ind. 214, 220, 95 N. E. 565; Carr v. State (1911), 175 Ind. 241, 243, 93 N. E. 1071, 32 L. R. A. (N. S.) 1190; Taylor v. State, 191 Ind. 200, 132 N. E. 294, 296; Ewbank’s Manual (2d ed.) §28c. Appellant’s contention, that a new trial should have been granted because the verdict was contrary to law, is based upon the further proposition that the affidavit was void by reason
The judgment is reversed, with directions to sustain appellants’ motion to modify the judgment as to the second specification thereof, and to eliminate and expunge from such judgment that part which purports to impose the penalty of a fine of $250 and imprisonment for ninety days “upon the verdict of the jury as to the third conviction,” and to resentence appellant accordingly.