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Docket Number

No. 24,824.

Attorney(S)

Pigman Roberts and Wiles, Springer Roots, for appellant. Arthur L. Gilliom, Attorney-General, Arnet B. Cronk and Carl J. Wilde, for the State.

Judges

EWBANK, C.J.

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Smart Summary

Post v. State of Indiana, No. 24,824 (Supreme Court of Indiana, Jan. 13, 1926)

Factual and Procedural Background

Elmer E. Post was charged and convicted in the Union Circuit Court with unlawfully "giv[ing] away, furnish[ing], barter[ing], exchang[ing] and otherwise dispos[ing] of intoxicating liquor." The record shows surveillance of defendant's garage and the adjacent vacant lot on November 20, 1923: officers and a witness observed activity near the garage and in the lot; one witness observed an unknown man remove a jug from a sack in an automobile in the lot, drink from it and replace it. Later the sheriff (who stated she had a search warrant) and federal prohibition officers searched the garage and the lot, recovering two jugs of moonshine whisky (one on a shelf in the garage and another found in a burlap sack under the rear seat of an old car in the lot). The defendant owned and used the lot to store old cars; some evidence indicated defendant took a burlap sack from a car a few hours later and that he was observed carrying a sack earlier in the day. The State introduced the recovered jugs as exhibits over the defendant's objection (the objection being that the search warrant and affidavit were not introduced in evidence). The defendant's motions to quash the indictment and for a new trial were overruled in the trial court. On appeal to the Supreme Court of Indiana, the overruling of the motion to quash and the overruling of the motion for a new trial were assigned as errors. The Supreme Court reversed the conviction and directed that the motion for a new trial be sustained.

Legal Issues Presented

Whether the indictment was subject to quashing because it did not comply with rules of criminal pleading or did not state facts sufficient to constitute a public offense.
Whether an indictment is insufficient because it charges in a single count that the defendant committed each of several acts made punishable by the same statutory section.
Whether the indictment alleged venue with sufficient certainty to confer jurisdiction on the Union Circuit Court.
Whether mere mistakes in grammar, spelling, or punctuation (specifically omission of a comma between "furnish" and "barter") vitiate an indictment.
Whether introduction into evidence of jugs and liquor seized under authority of a search warrant was improper when the search warrant and affidavit were not introduced in evidence.
Whether the evidence was sufficient to sustain a conviction for unlawfully giving away, furnishing, bartering, exchanging or otherwise disposing of intoxicating liquor.
Whether an instruction directing the jury to find the defendant guilty on evidence "indicative" of guilt was proper in light of the requirement that guilt must be established beyond a reasonable doubt.

Arguments of the Parties

Appellant's Arguments

The motion to quash asserted that (1) the indictment did not state facts sufficient to constitute a public offense and (2) it failed to comply with rules of criminal pleading.
The defendant objected to admission of the jugs and liquor because the State did not introduce the search warrant and the affidavit on which it was issued.

State's Position (as reflected in the opinion)

The State presented evidence that officers had made a search under a search warrant and introduced oral testimony to that effect without seasonable objection; no defect in the affidavit or search warrant was pointed out or suggested.
The State relied upon the evidence of surveillance, recovered jugs, and witnesses' testimony to support the conviction for giving away, furnishing, bartering, exchanging or otherwise disposing of intoxicating liquor.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lennard v. State, 191 Ind. 371, 132 N.E. 677 (1921)	That an indictment alleging in a single count several acts forbidden and punishable by the same statutory section is not insufficient for that reason.	The court relied on Lennard to hold the indictment was not insufficient merely because it charged multiple forbidden acts in one count.
Parker v. State, 196 Ind. 37, 146 N.E. 327 (1925)	Same principle as Lennard regarding charging multiple acts in a single count under the same statute.	Applied alongside Lennard to support that the single-count indictment was sufficient in that respect.
Rivers v. State, 144 Ind. 16, 42 N.E. 1021 (1896)	That recitals in the indictment establishing the county and state (title and return by the grand jury) are sufficient to fix venue for the county court.	Used to conclude that the indictment's venue allegation ("at said county and state aforesaid") was sufficiently certain to confer Union Circuit Court jurisdiction.
Bader v. State, 176 Ind. 268, 94 N.E. 1009 (1911)	The rule that a mere mistake in grammar, spelling or punctuation does not vitiate an indictment or affidavit when meaning is clear.	Applied to hold that omission of a comma between "furnish" and "barter" did not render the indictment insufficient.
Smith v. State, 194 Ind. 686, 144 N.E. 471 (1924)	That mere possession of intoxicating liquor was not then a public offense (in the context of the Prohibition laws as interpreted in that case).	Relied upon to explain that evidence tending only to show possession did not establish the charged offense of giving away, furnishing, etc., and thus the evidence was insufficient to sustain conviction.

Court's Reasoning and Analysis

The court addressed the assigned errors in structured sequence:

Indictment: The court first treated the motion to quash. The second ground of that motion (failure to comply with rules of criminal pleading) was not sufficiently specific and in any event was not a cause for quashing. Citing Lennard and Parker, the court held that charging, in a single count, that the defendant committed each of several acts forbidden by the same statutory section did not render the indictment insufficient. Citing Rivers, the court held venue was adequately stated by the indictment's title and recitals; the later phrase that acts were done "within the State of Indiana" did not create uncertainty as to venue. Citing Bader, the court held that a mere omission of a comma (between "furnish" and "barter") did not vitiate the indictment where the meaning was clear.
Admissibility of seized liquor: The record contained testimony (admitted without objection) that officers had a search warrant and had seized the jugs under its authority. The defendant's objection at trial rested on the State's failure to introduce the written search warrant and affidavit. The Supreme Court explained that where oral testimony that officers had a search warrant was admitted without objection and no defect in the search warrant or affidavit was suggested, that evidence sufficed to justify admitting the seized liquors without making further formal proof of the warrant's sufficiency.
Sufficiency of the evidence on the charged offense: The court reviewed the evidentiary facts (location of jugs, the vacant lot used to store cars, witness observations, surveillance, defendant's ownership/control of some cars and the lot, and the defendant's taking of a burlap sack hours later). The court emphasized that the crime charged was unlawfully "giving away, furnishing, bartering, exchanging or otherwise disposing of intoxicating liquor," not mere possession. Relying on Smith v. State, the court reiterated that mere possession was not the offense charged. The court found the evidence only supported an inference that defendant possessed intoxicating liquor kept in and about his garage or that he used the lot to store cars. There was no evidence that defendant authorized the unknown man to drink from the jug, knew the man would do so, was present at the time the man drank, or had any connection with the jug and its contents except the general use of the lot to store cars. Because the State introduced no proof directly connecting defendant to acts of giving, furnishing, bartering, exchanging or otherwise disposing of the liquor, the court concluded the evidence was insufficient to sustain the conviction.
Jury instruction: The court noted Instruction No. 10 told the jury they should find the defendant guilty when evidence "satisfy your minds to the degree of certainty indicative of the guilt of the accused." The court explained that instructing the jury to convict on evidence merely "indicative" of guilt was erroneous because the proper standard is that the evidence must convince the jury beyond a reasonable doubt. Although there was a possible copying omission in the instruction, the court held that the jury should not have been instructed to find guilt on evidence "indicative" of guilt. Because the court reversed on insufficiency of the evidence, it did not decide whether that instructional error was harmless.

Holding and Implications

Holding: The Supreme Court of Indiana reversed the conviction and directed that the trial court sustain the defendant's motion for a new trial.

Direct effect on the parties: The defendant's conviction for unlawfully giving away, furnishing, bartering, exchanging or otherwise disposing of intoxicating liquor was reversed and the case was remanded with directions to sustain the motion for a new trial.

The opinion applied existing precedent to resolve issues about indictment form, venue, punctuation, admissibility of seized items when a warrant was orally shown at trial without objection, and the sufficiency of evidence; the opinion did not announce that it was creating a new legal principle beyond those applications.

Opinion by Ewbanks, C.J.; case originates from Union Circuit Court (Judge Cecil C. Tague); filed January 13, 1926.

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POST v. STATE OF INDIANA.

1. INDICTMENT. — Failure of indictment to comply with rules of criminal pleading not ground for quashing. — That an indictment does not comply with the rules of criminal pleading is not cause for quashing it. p. 194.

2. INDICTMENT. — Indictment not bad because of charging in a single count the doing of all acts forbidden by single section of statutes. — An indictment is not insufficient because it alleges in a single count that the defendant did each and all of several acts forbidden and made punishable by the same section of the statute. p. 195.

3. INDICTMENT. — Indictment held to state venue sufficiently to confer jurisdiction. — An indictment entitled "State of Indiana, Union County, ss.," and charging that certain criminal acts were done in "said county," was sufficient to give the court of that county jurisdiction, and a subsequent averment that they were done "within the state of Indiana" would not render the allegation as to venue uncertain or otherwise insufficient. p. 195.

4. INDICTMENT. — Mistake in grammar, spelling or punctuation does not vitiate an indictment or affidavit. — A mere mistake in grammar, spelling or punctuation does not vitiate an indictment or affidavit, where its meaning is clear. p. 195.

5. INTOXICATING LIQUORS. — Indictment charging furnishing and bartering intoxicating liquor not insufficient because of omission of comma between the two words. — An indictment charging that the defendant did unlawfully "give away, furnish barter, exchange and otherwise dispose of intoxicating liquor" was not rendered insufficient as to the charges of furnishing and bartering by failure to put a comma between the words "furnish" and "barter." p. 195.

6. INTOXICATING LIQUORS. — Admission in evidence of jugs and liquor found on search of defendant's premises under authority of search warrant not error although warrant was not introduced. — In a prosecution for violating the Prohibition Law, the admission in evidence of jugs and liquor found on a search of defendant's premises under the authority of a search warrant was not error although search warrant had not been introduced in evidence, in the absence of any suggestion that such warrant was defective. p. 198.

7. INTOXICATING LIQUORS. — Evidence held insufficient to sustain conviction for giving away or otherwise disposing of intoxicating liquor. — Evidence held insufficient to sustain conviction for unlawfully giving away, furnishing, bartering, exchanging or otherwise disposing of intoxicating liquor. p. 198.

8. CRIMINAL LAW. — Instruction to find defendant guilty on evidence "indicative" of guilt was improper. — An instruction directing the jury to find the defendant guilty if evidence had been introduced that would satisfy the minds of the jurors to the degree of certainty "indicative" of guilt was erroneous, as the evidence must convince the jury beyond a reasonable doubt that the accused is guilty of the charge on which he is being tried. p. 199.

EWBANK, C.J.

Appellant was convicted on the charge that he "unlawfully gave away, furnished, bartered, exchanged and otherwise disposed of intoxicating liquor." Overruling his motions to quash the indictment, and for a new trial are assigned as errors.

The indictment was entitled "State of Indiana, Union County, SS," and recited that "the grand jurors of Union County, in the State of Indiana * * * on their oaths present that one 1. Elmer E. Post, late of said county, on the 20th day of November, A.D. 1923, at said county and state aforesaid, did then and there unlawfully give away, furnish barter, exchange and otherwise dispose of intoxicating liquor to person unknown to this grand jury and within the state of Indiana, contrary," etc. The motion to quash was for the alleged reasons that: (1) The indictment does not state facts sufficient to constitute a public offense; and that (2) it fails to comply with the rules in criminal pleadings. It is not clear just what was intended by the second proposition, but obviously what was stated is not a cause for quashing an indictment. § 2227 Burns 1926, § 2065 Burns 1914, § 194, ch. 169, Acts 1905 p. 584.

The indictment is not insufficient by reason of alleging in a single count that the defendant did each and all of several acts forbidden and made punishable by the same section of the 2, 3. statute. Lennard v. State (1921), 191 Ind. 371, 372, 132 N.E. 677; Parker v. State (1925), 196 Ind. 37, 146 N.E. 327.

The allegation that the acts charged were done "at said county and state aforesaid," after having entitled the indictment as of the "State of Indiana, Union county," and having recited that it was returned by the grand jury of "Union county, in the State of Indiana," charged that such acts were done in Union County with sufficient certainty to give the Union Circuit Court jurisdiction of the cause; and the subsequent charge that they were done "within the State of Indiana" did not make the allegation as to venue uncertain or otherwise insufficient. Rivers v. State (1896), 144 Ind. 16, 19, 42 N.E. 1021.

The mere failure to put a comma between the words "furnish" and "barter" did not make the indictment insufficient even as to the charge that the defendant bartered intoxicating liquor 4, 5. and that the furnished it. It is an established rule that where the meaning is clear a mere mistake in grammar, spelling or punctuation does not vitiate an indictment or affidavit. Bader v. State (1911), 176 Ind. 268, 273, 94 N.E. 1009. But, in any event, such an omission could not affect the sufficiency of the charge that he unlawfully gave away, exchanged and otherwise disposed of intoxicating liquor. The court did not err in overruling the motion to quash the indictment.

There was evidence that the defendant and his son owned a garage in Liberty, Indiana, in the rear of which was a vacant lot through which a way was open from the back door of the garage to a street beyond, the lot not being fenced; that on November 20, 1923, the sheriff, looking from the windows of her office in the courthouse a square away, watched the rear door of the garage all day, and that a deputy sheriff, from noon until the middle of the afternoon, watched the front door from a grocery store across the street; that defendant was seen by the sheriff to drive up to the garage at noon and go to a machine and take out a sack with something in it, but she could not tell what was in the sack; that she saw defendant out in the back lot, at the rear of his garage; that a deputy sheriff saw defendant at about 12 or 12:30 o'clock in the afternoon in the garage; that he watched the front part of the garage from about 12:30 o'clock up to about 3 o'clock and saw defendant there several different times; that there were about twenty-five cars out in the vacant lot behind the garage, part of which were abandoned, worthless cars, and some of which were being worked on at that time; that on the morning of that day a witness had been in defendant's garage when he walked to the back door and saw a man that he did not know take a jug from a sack in an automobile out in the back lot, take the stopper from the jug and drink from it, and then replace the jug in the automobile, after which the witness went to the office of the deputy sheriff; that in the vacant lot were many automobiles, but there was a driveway, wide enough for automobiles, from the rear of the garage across the lot to the street behind; that a federal prohibition officer and the sheriff and deputy sheriff, with two other persons, went to defendant's garage at about 4 or 5 o'clock in the afternoon of that day, and he met them inside his garage near the door; that the sheriff said to him that she had a search warrant and started to read it, but he said he did not want to hear it and started to walk through the garage; that she followed him and on a shelf in the stockroom found a glass jug with moonshine liquor in it that was not concealed nor hidden; that the federal prohibition officer, who had received information from the sheriff and from the person who saw a man drinking from a jug in the vacant lot, went to a broken down old automobile that stood on the vacant lot, and in a burlap sack, concealed under the rear seat, found a one-gallon white and brown jug which contained moonshine whisky, and carried it to the office of the justice of the peace; that the jugs and contents so found were the same which were then in the courtroom before the jury, marked exhibit No. 1, and exhibit No. 2; that the prohibition officer had arrived in Liberty at 2:30, came to the courthouse, secured the necessary papers, and then made the search about 4 or a little later; that the distance from the rear of the garage across the vacant lot occupied by the old cars was about eighty feet, and that the car in which the jug of moonshine whisky was found was standing out in the open, with a number of other cars out there, about twenty-five feet from the rear of defendant's garage; that defendant owned some of the old automobiles in the rear of the garage and had control of the cars stored there, and used the vacant lot there to store old cars in; that the deputy sheriff, at the time the search was made, saw some other fellows get two bottles behind some oil barrels. But it was not shown that the bottles contained anything, and there was no evidence who owned the vacant lot. All of this evidence having been admitted and heard without objection or exception, the state then offered to introduce in evidence the two jugs of liquor, when defendant objected, and, his objection having been overruled, he reserved an exception to their introduction.

The reason offered by appellant for objecting to the introduction in evidence of the jugs and liquor they contained was that the state had not introduced in evidence the 6, 7. search warrant and the affidavit on which it was issued. No defect in the affidavit or the search warrant was pointed out or even suggested, and where evidence that the officers had a search warrant, and under authority of that warrant had made a search and seized the jugs and their contents, had been admitted without objection, it was sufficient to justify the introduction in evidence of the liquors thus seized, without making that formal proof of the sufficiency of the search warrant which might have been required if seasonable objection had been made when oral testimony that the officers had a search warrant was offered. Evidence which was not disputed was to the effect that defendant had gone to Oxford, Ohio, early in the morning of that day and had eaten his lunch there before he started back to Liberty. The evidence, as above set out, might possibly support an inference that the defendant had possession of intoxicating liquor which he kept in and about his garage. But that was not the charge against him, and mere possession of intoxicating liquor was not then a public offense. Smith v. State (1924), 194 Ind. 686, 144 N.E. 471. And in the absence of any evidence tending to prove that he authorized the unknown man to drink from the jug taken out of the old car in the vacant lot, or that he knew the man would do so, or that he was in the town of Liberty or county of Union, or even in the State of Indiana when the man took the jug out of the car and drank from it, or had any connection with or knowledge of the jug and its contents, except what might be inferred from the fact that he used the vacant lot, open to the street, as a place to store cars, and that the whisky was under the seat of an old abandoned car in that lot, and that he was seen to take a burlap bag out of some car a few hours later, the evidence is not sufficient to sustain a verdict finding him guilty of unlawfully giving away, furnishing, bartering, exchanging and otherwise disposing of intoxicating liquor, which was the only charge for which he was on trial and of which he was convicted. The evidence was not sufficient to sustain the verdict.

Instruction No. 10, which the court gave, told the jury, among other things, that "All the state is required to do to produce such evidence that will satisfy your minds to the degree of 8. certainty indicative of the guilt of the accused of the charge covered in the indictment and when this is done you should find the defendant guilty." One or more words necessary to make the sentence complete would seem to have been omitted in copying. But, in any event, the jury should not have been instructed to find the defendant guilty on evidence "indicative" of guilt. It is only when the evidence convinces the jury of defendant's guilt beyond a reasonable doubt that they should return a verdict finding him guilty. As the judgment must be reversed because of the insufficiency of the evidence, it is not necessary to consider and we do not decide whether or not the error in giving this instruction is shown to have been harmless, as the attorney-general insists it was.

The judgment is reversed, with directions to sustain the motion for a new trial.

POST v. STATE