193 Ind. 232 | Ind. | 1923
Appellants were prosecuted upon an indictment in two counts. The first count charged appellants with maintaining a common nuisance by keeping a public building where intoxicating liquors were kept for sale, in violation of §20, Acts 1917 p. 15, §8356t Burns’ Supp. 1921. The second count charged appellants with unlawfully keeping intoxicating liquors with intent to sell, in violation of Acts 1917 p. 15, §4, as amended, Acts 1921 p. 736, §1, §8356d Burns’ Supp. 1921. From a conviction and judgment assessing a fine against appellant Anna Waliski, and a fine and imprisonment against appellant Peter Waliski, they prosecuted this appeal, assigning as errors the overruling
In support of the motion for a new trial, appellants earnestly insist that the decision of the court was contrary to law, for the reason that the Eighteenth Amendment to the federal Constitution had the effect of nullifying all state laws making it unlawful to manufacture or sell intoxicating liquors. They say that the prohibition law of 1917 (Acts 1917 p. 15, §8356a et seq. Burns’ Supp. 1921), was the exercise of inherent power, and the vesting of that power in the federal government by the states exhausted their power over the particular subject, except in so far as §2 of the amendment granted special power to the states. The question thus submitted by appellants was before this court in the case of Palmer v. State (1921), 191 Ind. 683, 133 N. E. 388. In the consideration of this case we have re-examined the Palmer case, with the result that we are still satisfied with the conclusion therein reached. We may add, the first section of the amendment by Art. 6 of the federal Constitution is made a part of the supreme law of the land “and of its own force invalidates every legislative act — whether by Congress, by a state legislature, or by a territorial assembly — which authorizes or sanctions what the section prohibits” (National Prohibition Cases [1919], 253 U. S. 350, 387, 40 Sup. Ct. 486, 488, 64 L. Ed. 946), that is to say, it prohibits these various legislative bodies from enacting laws authorizing “the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territories subject to the jurisdiction thereof for beverage purposes.” It is a grant of power from the states, and
It is next insisted that the decision of the court was not supported by sufficient evidence, and for that rea- ' son it was contrary to law. Without attempting to set out the evidence either for the state or the defendants, it is enough to say that, if the court believed the witness for the state, the evidence was quite sufficient to authorize a finding that both appellants were guilty as charged, especially as to count 2 of the indictment. However, we may say, in justification of appellants, that the witnesses for the state, fixed March 19, 1922, as the date of the offense. The evidence on behalf of the defendants, if believed, clearly established an alibi for both of them on that day. There was also much evidence by various citizens and neighbors of appellants to the effect that they never saw anything indicating that intoxicating liquors were being kept by them for any purpose. All of these witnesses were before the court, and for us to disturb the judgment would require that we weigh the evidence, which it is not our province to do. When there is evidence, as in this case, .tending to prove each of the essential elements to support the charge, however its weight may
Appellants’ motion in arrest of judgment was properly overruled. The court unquestionably had jurisdiction of the subject-matter and of the parties. Hence, there was no basis for the motion on jurisdictional grounds. That part of the motion which rests upon insufficient facts to constitute a public offense is made to depend upon there being no law in force in this state authorizing the alleged charge. We have already disposed of that question by our ruling sustaining the law under which appellants were prosecuted.
No question is presented by appellants’ third assignment of error. This court has many times held that an indictment or affidavit cannot be tested for the first time by an assignment of error on appeal. Bills v. State (1918), 187 Ind. 721; Underhill v. State (1916), 185 Ind. 587; Robinson v. State (1916), 184 Ind. 208; Boos v. State (1914), 181 Ind. 562.
The alleged errors pointed out by appellants, all of which we have considered, will not justify us in disturbing the conclusion of the trial court.
Judgment affirmed.