Rowe v. StateRowe v. State
- Reporters:
- , ,
- Before:
- Willoughby
The defendant was convicted of a violation of the Prohibition Law. The affidavit charged that “on or about the 16th day of December, 1920, at Elkhart County, in the State of Indiana, Archibald Rowe, did then and there unlawfully, keep and have in his possession certain intoxicating liquors, with intent to unlawfully sell, barter, exchange, give away, or otherwise dispose of the same.”
This affidavit was filed on December 17, 1920, аnd on the same day defendant appeared in open court, and еntered a plea of guilty. The court deferred sentence until December 28, 1920. On that day defendant by his attorney, filed a motion for leave to withdraw his plea of guilty and enter a plea of not guilty. This motion was supported by the affidavit оf defendant setting forth in detail his reasons why such motion should be sustained. The court then fixed December 31, 1920, as the time for hearing on the motion to withdraw the plea of said defendant.
It appears from the record that at the time set fоr the hearing of said motion, the defendant appeared in person аnd by his attorney and the State of Indiana appeared by the proseсuting attorney “and evidence is introduced on behalf of the State in • opрosition to the facts disclosed in the affidavit, filed in support of the motion for leave to withdraw defendant’s plea of guilty, heretofore entered hеrein. And the court having hoard the evidence adduced and being well advised in the *538premises, upon due consideration, overrules said motion for leavе to withdraw plea. * * *”
The defendant then filed a motion in arrest of judgment which motiоn was overruled and judgment entered from which appellant appeals.
The errors relied on for reversal are: (1) The court erred in overruling aрpellant’s motion to set aside the judgment and for leave to withdraw pleа of guilty and to enter a plea of not guilty to the affidavit .herein. (2) The court erred in overruling appellant’s motion in arrest of judgment.
In the instant cаse the ruling of the court was based on conflicting evidence, which the trial сourt was compelled to weigh to reach a conclusion. We cаnnot say that the court abused its discretion in overruling the motion to withdraw the plea of guilty.
The affidavit would have been bad on a motiоn to quash, because of the use of the disjunctive “or” instead of the conjunсtive “and.” State v. Sarlin (1919), 188 Ind. 359, 123 N. E. 800; Young v. State (1919), 188 Ind. 505, 124 N. E. 679; Graves v. State (1921), ante 197, 132 N. E. 369.
One of the statutory grounds for quashing an indictment or affidavit is “that the indictment оr affidavit does not state the offense with sufficient certainty.” §2065, cl. 4, Burns 1914, Acts 1905 p. 584, §194.
No motion to quash was made. By our statute the motion in arrest is limited in its scope. §2159 Burns 1914, Acts 1905 р. 584, §283. The motion in arrest of judgment did not question the affidavit for uncertainty in the statemеnt of facts constituting the offense, intended to be charged in the affidavit. Such uncertainty can only be questioned by a motion to quash and not by a motion in arrest. See: Laycock v. State (1894), 136 Ind. 217, 36 N. E. 137; Stewart v. State (1888), 113 Ind. 505, 16 N. E. 186; Trout v. State (1886), 107 Ind. 578, 8 N. E. 618; State v. Arnold (1896), 144 Ind. 651, 42 N. E. 1095, 43 N. E. 871; Woodworth v. State (1896), 145 Ind. 276, 43 N. E. 933; Campton v. State (1895), 140 Ind. 442, 39 N. E. 916; Merrick v. State (1878), 63 Ind. 327; Bright v. State (1883), 90 Ind. 343; Lay v. State (1913), 180 Ind. 1, 102 N. E. 274; Boos v. State (1914), 181 Ind. 562, 105 N. E. 117.
No error was committed in overruling the motion in arrest of judgment.
No error appearing in the record the judgment is affirmed.