187 Ind. 73 | Ind. | 1918
Lead Opinion
— Appellant was tried and convicted on an indictment which charges that, on a certain fixed occasion, he kept and operated a place where intoxicating liquors were sold, bartered and given away in violation of §8351 Burns 1914, Acts 1907 p. 689. Following the statement of this charge, the indictment further alleges that appellant has previously been convicted of a similar offense, although the statute on which this prosecution is based makes no provision concerning a second or subsequent conviction on the charge of keeping or operating a place where intoxicating liquors are sold, bartered or given away in violation of law. Appellant filed a motion to strike from the indictment such allegations as referred to the prior conviction and also moved to quash the indictment because of their presence therein. These motions were each overruled. Subsequently, the prosecuting attorney, in making his opening statement to the jury, was permitted to read the entire indictment, over appellant’s objection to the reading of so much thereof as referred to the former conviction. Appellant then moved to set aside the submission of the cause and to discharge the jury because of the reading of that portion of the indictment, which motion was also overruled. The several rulings thus indicated, and others which present the same issue, are each challenged by this appeal and form the basis for appellant’s contention that he was seriously prejudiced through this indirect suggestion to the jury as to his former conviction. '
Judgment reversed, with instructions to sustain appellant’s motion to strike out part of the indictment, and for further proceedings not inconsistent herewith.
Concurrence Opinion
concurs in the conclusion, on the theory that the motion to quash should have been sustained under §2063, cl. 10, Burns 1914, supra, but does not agree that a motion to strike out is the proper practice.
Note. — Reported in 118 N. E. 355. See tinder (1) 22 Cyc 370. . Validity of law imposing heavier penalty for second offense, 64 Am. St. 380.