(147 N.E.)

the crime was committed; second, that the date of the commission of the crime as shown by the evidence was different from the date charged by the affidavit. The formal charge was that the offense was committed in Marion county, Ind., of which fact there was direct proof. It is not necessary to allege, as appellant's counsel contends in his argument, that the exact place within the county be specified so that the defendant may know the exact charge of crime against him. To support this contention he relies upon section 1867, Burns' 1914. This section of the statute is not in support of the contention so made. All that is necessary to allege in the formal charge to meet the criticism of appellant is that the offense was committed in the county having jurisdiction, and it being unnecessary to allege the place of the commission of the crime more definitely, it was only

The only necessary allegation with reference to the place of the commission of the crime is that it be alleged within the jurisdiction of the court by naming the county within the state in which the offense was committed. An indictment or affidavit will not be set aside or quashed for the want of an allegation of the time or place of any material fact, when the venue and time have once been stated in the indictment or affidavit. Section 2062, subd. 3; section 2063, subd. 2, Burns' 1914.

It was not error to overrule both the motion to quash the affidavit and the motion for a new trial. Affirmed.

HAVERSTICK v. STATE. (No. 24727.)

necessary for the proof of the place where (Supreme Court of Indiana. April 28, 1925.)

7-Persons lawfully arrested for misdemeanor in officer's presence may be searched without warrant, and facts discovered are admissible against them.

Persons lawfully arrested for driving automobile at unlawful speed, which is misde

the crime was committed, to meet the allegation as made. Hutchinson v. State, 62 Ind. 556. 1. Criminal law 394-Searches and seizures The statute relating to criminal procedure (section 2062. Burns' 1914) provides that the affidavit is sufficient, if it can be understood therefrom that the offense was committed within the jurisdiction of the court, and is triable therein. This statute does not require that the exact location of the commis-meanor, committed in officer's presence, may sion of the crime, such as the particular lot or block or street number or section of land where the crime may have been committed, be stated. Having laid the venue by naming the county within the state, it is unnecessary to allege the place of the commission of the offense with any more certainty. Hawkins v. State, 136 Ind. 630, 36 N. E. 419; Rivers v. State, 144 Ind. 16, 42 N. E. 1021. [2] For the proof to be sufficient to sustain the finding of the court, it is necessary only that the place of the commission of the offense be proven as charged.

[3] The time of the commission of the offense, as alleged by the affidavit, was April 3, 1924. The proof showed that the offense was committed April 1, 1924. Time is not the essence of the offense charged, except that the time of the charge of the offense must be before the presentment of the affidavit, and within the statute of limitations. The time as charged in the affidavit here meets the exceptions, and proof of the crime as having been committed three days prior to the time of the commission of the offense as charged, is not subject to the objection made. Terrell v. State, 165 Ind. 443, 75 N. E. 884, 2 L. R. A. (N. S.) 251, 112 Am. St. Rep. 244, 6 Ann. Cas. 851; Zoller v. State, 189 Ind. 114, 126 N. E. 1.

[4] The appellant claims that the court erred in overruling his motion to quash the affidavit, and says that the offense was not stated with sufficient certainty, because the place of the commission of the offense in Marion county was not laid in the affidavit.

be searched without warrant, and search may extend to automobile and contents of packages in their possession without violating Const. art. 1, § 11, and facts thereby discovered as to unlawful transportation of liquor are admissible in evidence against them.

2. Criminal law 394-Articles found in possession of persons lawfully arrested for one offense may be used as evidence in prosecution for other offense.

That articles found in possession of persons lawfully arrested for driving automobile at excessive speed were used in committing offense other than one for which arrest was made did not require exclusion of evidence thereof in prosecution for such other offense. 3. Intoxicating liquors 236 (20)-Unlawful transportation of liquor held proved.

Evidence held sufficient to sustain conviction for unlawfully transporting intoxicating liquor.

4. Intoxicating liquors 239 (2)-Court only required to give instructions applicable to evidence.

In prosecution for unlawfully transporting liquor in automobile, made felony under Acts 1923, c. 34, § 1, failure to instruct as to transporting by other means made misdemeanor under chapter 23, § 1, was not error, in absence of evidence tending to prove such other transportation, court being only required to give instructions applicable to evidence.

5. Criminal law ~825(1)—In absence of request, failure to give further instructions was not reversible error.

Where instructions given were correct as far as they went, mere failure to give further

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 147 N.E.-40

instructions was not reversible error in absence of proper request for instructions covering omitted legal proposition.

6. Indictment and information

Misdemeanor of transporting liquor by horseback, or on foot, etc., under Acts 1923, c. 23, or by means other than those constituting felony under chapter 34, relating to transportation by wagon, automobile, etc., is not less degree of such felony but is entirely different

offense.

7. Intoxicating liquors 239 (2)-Court properly refused to instruct that jury could find accused guilty of felony or misdemeanor, under indictment charging felony only.

It was made to appear, without dispute, that two deputy sheriffs of Marion county, Ind., were driving an automobile toward In189(1)-Mis-dianapolis, along the National road, in said demeanor of transporting on horseback, foot, county, near Morris street, when the defendetc., held not degree of felony by transport-ants drove past in a Ford coupé "at a tering by automobile, etc. rific rate" of more than 45 miles an hour, and turned east in Morris street; that the deputy sheriffs followed and overtook them, when both of the defendants were arrested on the charge of driving at an unlawful rate of speed, to which charge appellant Fagin afterward pleaded guilty, and for which he paid a fine and costs; that after the arrest was made the deputy sheriffs examined the car which defendants had been driving and in a "side pocket" on the side where appellant Haverstick had been sitting, found a loaded revolver, and behind the cushions a box of cartridges, the ownership of which Haverstick admitted, afterward pleading guilty to the charge of carrying concealed weapons, and paying a fine and costs; that in the back part of the coupé the officers found six cartons, not sealed, each of which contained a five-gallon can of "white mule whisky"; that 8. Intoxicating liquors 239 (2)-Instruction Haverstick owned the car, and they had that Constitution could be revoked only by brought the whisky over from Terre Haute, authority that made it held properly refused. each driving a few miles, in turn; that a In prosecution for transportation of intoxi- man they met in Terre Haute had promised cating liquor under Acts 1923, c. 34, accused's to pay them $50 for the trip if they would requested instruction, lauding Constitution and asserting that it could be revoked or altered only by authority that made it, held properly

Where indictment charging unlawful transportation of intoxicating liquor by automobile, made felony under Acts 1923, c. 34, did not charge misdemeanor under chapter 23, court properly refused to instruct that jury could find accused guilty of felony, or of misdemeanor, and impose fine with imprisonment in county jail.

refused.

9. Criminal law 766-Instruction that statute was vague and that jurors were judges of law, held properly refused.

In prosecution for unlawfully transporting intoxicating liquor, accused's requested instruction that Acts 1923, c. 34, under which accused was prosecuted, was so vague as to make its interpretation difficult, and that jurors were judges of law as well as of evidence, and might take that fact into consideration, was properly refused, since it is court's duty by instructions to interpret law.

bring the cartons over and deliver them to a person they were to meet in Indianapolis, and that they were hauling the liquor for him.

[1] But the officers had no search warrant at the time they searched the car. And before the jury was sworn, appellants filed a verified motion setting up that fact and asking that all evidence of what was learned by making the search should be suppressed, because it was alleged that the search had been made in violation of the constitutional right of the accused to be secure against unreasonable search and seizure of their effects. Section 11, art. 1; section 56, Burns' 1914. This motion was overruled and

Appeal from Criminal Court, Marion Coun- appellants excepted. And they objected and ty; Jas. M. Collins, Judge.

Lloyd Haverstick was convicted of unlawfully transporting intoxicating liquor in an automobile, and he appeals. Affirmed.

excepted to each of many items of evidence relating to the liquor found in the car, and to the introduction in evidence of one of the cartons of whisky. They specified as reasons for asking a new trial each of said rul

H. B. Pike and T. Ernest Maholm, both of ings, and also that the verdict is not sustainIndianapolis, for appellant.

U. S. Lesh, Atty. Gen., for the State.

EWBANK, J. Appellants were charged by affidavit with the offense of unlawfully, knowingly, and feloniously transporting intoxicating liquor in an automobile and, being tried by a jury, were found guilty, and each was sentenced to pay a fine and suffer imprisonment. Overruling their respective motions for a new trial is the only error assigned.

ed by sufficient evidence, insisting that there was no evidence tending to prove them guilty except what was unlawfully obtained by an unreasonable search and seizure. The right of officers to search a person upon lawfully putting him under arrest, as was done in this case under the facts stated, is affirmed by all the authorities. State v. Clausmeier, 154 Ind. 599, 57 N. E. 541, 50 L. R. A. 73, 77 Am. St. Rep. 511; Weeks v. United States, 232 U. S. 383, 392, 34 S. Ct. 341, 344, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(147 N.E.)

Rep. 307; Toliver v. State, 133 Miss. 789, 98 So. 342; Wiggin v. State, 28 Wyo. 480, 206 P. 373, 377; Milam v. United States (C. C. A.) 296 F. 629.

[3] If an officer, upon searching a person lawfully arrested for the commission of a public offense, should find in his possession a set of burglar tools and articles stolen from a house recently broken into, or implements for making counterfeit money and a quantity of coin or bills unlawfully made, or the body of a murdered man and the bloody weapon used in killing him, the person searched would not be granted immunity from prosecution for burglary or counterfeiting or murder, as the case might be, because the ev idence of his guilt was discovered only through the search, even though the original arrest was for an entirely different crime. And appellants having been placed under arrest before the search was made, on a charge of the commission of a misdemeanor in the view of the officers, to which plea of guilty was afterward entered, no error was commit

1915C, 1177; French v. State, 94 Ala. 93, 10, A. 624, 18 L. R. A. (N. S.) 253, 125 Am. St. So. 553; People v. Beach, 49 Colo. 516, 520, 113 P. 513, 37 L. R. A. (N. S.) 873; State v. Magnano, 97 Conn. 543, 117 A. 550; State v. Gulczynski (Del. Gen. Sess.) 120 A. 88; Haile v. Gardner, 82 Fla. 355, 360, 91 So. 376; Dozier v. State, 107 Ga. 708, 33 S. E. 418; North v. People, 139 Ill. 81, 107, 28 N. E. 966; State v. Hassan, 149 Iowa, 518, 524, 128 N. W. 960; Turner v. Commonwealth, 191 Ky. 825, 830, 231 S. W. 519; Getchell v. Page, 103 Me. 387, 69 A. 624, 18 L. R. A. (N. S.) 253, 125 Am. St. Rep. 307; People v. Cona, 180 Mich. 641, 147 N. W. 525; Toliver v. State, 133 Miss. 789, 98 So. 342; Holker v. Hennessey, 141 Mo. 527, 540, 42 S. W. 1090, 39 L. R. A. 165, 64 Am. St. Rep. 524; Azparren v. Ferrel, 44 Nev. 157, 191 P. 571, 11 A. L. R. 678; O'Connor v. Bucklin, 59 N. H. 589; State v. Mausert, 88 N. J. Law, 286, 95 A. 991, L. R. A. 1916C, 1014; People v. Chiagles, 237 N. Y. 193, 197, 142 N. E. 583, 32 A. L. R. 676; State v. McDaniel, 39 Or. 161, 65 P. 520; Hughes v. State, 145 Tenn. 544, 569, 238 S. W. 588, 20 A. L. R. 639; Quivers v. Commonwealth, 135 Va. 671, 674,|ted in refusing to suppress the evidence dis115 S. E. 564; State v. Nordstrom, 7 Wash. 506, 35 P. 382; State v. Brown, 83 Wash. 100, 145 P. 69; State v. Edwards, 51 W. Va. 220, 41 S. E. 429, 59 L. R. A. 465; Thornton v. State, 117 Wis. 338, 345, 93 N. W. 1107, 98 Am. St. Rep. 924; Wiggin v. State, 28 Wyo. 480, 206 P. 373; 1 Wharton's Criminal Proc. (10th Ed.) § 97; 2 Ruling Case Law, 467; Note 32 A. L. R. 681.

The search may extend to the contents of a package, bundle, or bag carried by the person arrested. State v. Gulczynski (Del. Gen. Sess.) 120 A. 88; State v. Hassan, 149 Iowa, 518, 524, 128 N. W. 960; Turner v. Commonwealth, 191 Ky. 825, 231 S. W. 519.

And the right to search an automobile in which the accused was riding at the time of such lawful arrest has been repeatedly upheld. Patrick v. Commonwealth, 199 Ky. 83, 250 S. W. 507; Toliver v. State, 133 Miss. 789, 98 So. 342; Azparren v. Ferrel, 44 Nev. 157, 191 P. 571, 11 A. L. R. 678; Hughes v. State, 145 Tenn. 544, 569, 238 S. W. 588, 20 A. L. R. 639; United States v. Neadeau (D. C. 1924) 2 F.(2d) 148.

covered by means of the search, or in admitting evidence at the trial of what the officers found when making the search, and there was competent evidence sufficient to sustain the verdict of guilty.

[4] Appellant complains that the trial court limited its instructions to the law which makes it a felony to transport intoxicating liquor in any wagon, buggy, automobile, water or air craft, or other vehicle (section 1, c. 34, p. 108, Acts 1923) and said nothing about the statute which makes it a misdemeanor to transport such liquor by other means (section 1, ch. 23, p. 70, Acts 1923). But we have not been referred to any evidence tending to prove that defendants transported liquor otherwise than in an automobile, nor have we discovered any in the record. And the court is only required to give instructions which are applicable to the evidence as well as the issue. Davis v. State, 152 Ind. 34, 38, 51 N. E. 928, 71 Am. St. Rep. 322.

given were correct as far as they went, a mere failure to give further instructions is not cause for reversing the judgment, in the absence of a proper request for instructions covering the omitted legal proposition. Rey

[5] Moreover it does not appear from the briefs of appellants that they asked an instruction undertaking to apply to any facts [2] Where the search was not an invasion of which there was evidence; the law makof any rights of the accused but was lawful-ing it a misdemeanor to transport intoxicatly made pursuant to a legal arrest, the facts ing liquor otherwise than by the vehicles thereby discovered may be used in evidence mentioned. And where the instructions against him. And the legality of the arrest being clear, the fact that articles found on his person, or in his immediate possession were being used in the commission of an offense other than the one for which the arrest was made is not sufficient cause for ex-nolds v. State, 147 Ind. 3, 10, 46 N. E. 31; cluding evidence of what the search disclosed, when he is placed on trial for such other offense. French v. State, 94 Ala. 93, 10 So. 553; State v. Magnano, 97 Conn. 543, 117 A. 550; Dozier v. State, 107 Ga. 708, 33 S. E. 418; Getchell v. Page, 103 Me. 387, 392, 69

Epple v. State, 190 Ind. 87, 90, 129 N. E. 403; Chesterfield v. State (Ind. Sup.) 141 N. E. 632.

[6] The misdemeanor defined by chapter 23, page 70, Acts 1923, of transporting intoxicating liquor on foot, or on horseback,

or in any manner other than by such means as will constitute a felony under the provisions of chapter 34, page 108, Acts 1923, is not a less degree of the felony defined by the latter statute, but is a wholly different offense, committed by entirely different means. To carry liquor on foot or on horseback is not the same act as to carry it in an automobile, and one such offense does not embrace the other.

nedy v. Bebout, 62 Ind. 363; Clifford v. State, 56 Ind. 245, 251.

Appellants excepted to the refusal to give some other requested instructions, but they are not set out in the briefs, and no question as to the propriety of such refusal is presented. All the questions of law discussed by counsel for appellants have been fully considered and decided by what was said above, and we find no cause for reversal. The judgment is affirmed.

(No. 11793.)

[7] The court properly refused to give an instruction that, in case appellants were found guilty, the jury could either return a verdict finding them guilty of a felony, leaving the penalty to be fixed by the court under ELLIS BROS. v. LAKE ERIE & W. R. CO. the indeterminate sentence law, or find them guilty only of a misdemeanor, and impose a fine, with imprisonment in the county jail. The indictment charged them only with the felony of transporting intoxicating liquor in an automobile, and not with the commission of a misdemeanor by transporting it in some other way.

The jury returned a separate verdict as to each defendant, naming him, finding his age, and finding that he was guilty. Appellants were not harmed by any irregularity in giving instructions as to the form of the verdict.

[8] Instruction No. 36, asked by appellants, consisted of a laudation of "the Constitution" as "the supreme law, paramount to the power of the Legislature," but contained no explanation of nor reference to any provisions of the Constitution, nor of any statute or rule of law applicable to the facts of this case, and amounted to nothing more than an assertion that the Constitution "can be revoked or altered only by the authority that made it." No error was committed in refusing to give this instruction.

[9] By their requested instruction No. 38, appellants asked the court to characterize the law under which they were being prosecuted as "so vague and uncertain" as to make its interpretation very difficult, and to tell the jury that they were the judges of the law as well as the evidence and might take that fact into consideration in deciding the question of guilt or innocence. This instruction was properly refused. It is the duty of the court by its instructions to interpret the law and tell the jury what it means; not to turn them adrift on an uncharted course, without rudder or compass, with directions to doubt the meaning of a statute. "In charging the jury the court must state to them all matters of law which are necessary for their information in giving their verdict." Section 2136, subd. 5, Burns' 1914; section 1, c. 96, Acts 1909, pp. 257, 258; Bridgewater v. State, 153 Ind. 560, 566, 55 N. E. 737; Anderson v. State, 104 Ind. 467, 477, 478, 4 N. E. 63, 5 N. E. 711.

And it is no part of his duty to disparage the law as so declared. Bridgewater v. State, 153 Ind. 560, 566, 55 N. E. 737; Ken

(Appellate Court of Indiana. April 29, 1925.)

I. Appeal and error 757 (3)-Overruling motion for new trial not reviewed, in absence of statement of evidence in brief.

Where appellant has not set out statement of evidence in its brief, as required by rules of court, nor moved to amend brief to comply with rules, and appellee has not supplied defect, no question relative to overruling of motion for new trial respecting amount of recovery can be reviewed.

2. Appeal and error 265 (2)-Conclusion of

law not reviewable without exception.

Assignment of error, complaining of conclusion of law to which no exception was taken, presents no question for determination.

Appeal from Superior Court, Marion County; C. H. Givan, Judge.

Action by Ellis Bros., a corporation, against the Lake Erie & Western Railroad Company. From partial judgment in its favor, plaintiff appeals. Affirmed.

Clarence W. Nichols, of Indianapolis, for appellant.

Miller, Dailey & Thompson, of Indianapolis, for appellee.

PER CURIAM. Complaint by appellant to recover damages for the loss of coal from certain carload shipments. The cause was tried by the court and the facts found specially. The court concluded as a matter of law that appellant was entitled to recover $126.29, and a judgment was rendered accordingly. The errors assigned are that the court erred in overruling the motion for a new trial, and in the conclusion of law.

[1] The first and only contention relating to the action of the court in overruling the motion for a new trial is that the amount of the recovery is too small. This contention is based upon the theory that the uncontradicted evidence shows appellant was entitled to recover $182.20, instead of $126.29, as stated in the conclusion of law. Appellee has called attention to the fact that appellant in its brief has not set out a statement of the evidence as required by the rules of this

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(147 N.E.)

court. Appellee has refrained from supplying this defect, and appellant had made no move to amend its brief so as to comply with the rules. In accordance with repeated decisions of the Supreme Court by which we are bound, we hold no question relative to the overruling of the motion for a new trial, as the action of the court in that behalf depends on the evidence. See Rose v. City of Jeffersonville, 185 Ind. 577, 114 N. E. 85; Cleveland, etc., R. Co. v. Bowen, 179 Ind. 142, 100 N. E. 465; Leedy v. Idle, 69 Ind. App. 105, 121 N. E. 323; Pittsburgh, etc., R. Co. v. Retz, 71 Ind. App. 581, 125 N. E.

424.

[2] No exception having been taken to the conclusion of law, no question is presented under the second assignment of error. Judgment affirmed.

HALSTEAD v. CITY OF BRAZIL. (No. 12296.)

Appeal from Circuit Court, Clay County; Jas. P. Hughes, Judge.

Suit for injunction by James N. Halstead against the City of Brazil. Judgment for defendant, and plaintiff appeals. Affirmed.

Bernard C. Craig, of Brazil, for appellant. Otto T. Englehart and Rawley & Baumunk, all of Brazil, for appellee.

NICHOLS, J. Action by appellant against appellee, a city of the fifth class, to enjoin it from condemning lands for the purpose of erecting a sewage disposal plant thereon.

It is averred in the complaint that appellee is a city having a population of less than 10,000, as shown by the last census, and having less than $7,500,000 of taxables, as shown by the last preceding assessment-in effect, that it is a city of the fifth class; that appellant is the owner of certain described real estate in Clay county, Ind.; that such land is valuable in that it is well drained, suited to the growing of crops adapted to this climate,

(Appellate Court of Indiana, Division No. 2. and that it has underlying it a vein of coal

April 30, 1925.)

1. Eminent domain 58-Statutes held to authorize cities of fifth class to condemn land within or without city limits for proper disposition of city sewage.

and fire clay which cannot be mined except by stripping; that appellee is threatening to and will, unless enjoined from so doing, enter upon such land and appropriate it to its own use for the purpose of erecting thereon a sewage treatment plant and its appurtenances, thereby inflicting named dam

Burns' Ann. St. 1914, § 8696, subd. 1 et seq., authorizing cities to condemn land, when construed with section 8655, authorizing cities to provide for destruction or use, of any unwhole-ages thereto; that the common council of some substance, and section 8959, as to fifth class cities, held to authorize city of fifth class to condemn land for proper disposition of city sewage, whether land was within or without city limits.

2. Evidence 10(2)-Judicial notice of exact limits and boundaries of cities and towns not taken.

While courts take judicial notice of existence and names of cities and towns, and in general sense of their location, they do not take such judicial notice of their exact limits and boundaries or as to whether a described tract of land is within or without city limits.

3. Eminent domain 169-City held not required to adopt ordinance providing a method for condemnation of land.

Under Burns' Ann. St. 1914, § 8696, subd. 1 et seq., and sections 8959 and 8655, cities of fifth class, seeking to condemn land for proper disposition of city sewage, held not required to adopt an ordinance providing a method for exercise of such power.

4. Eminent domain

274(1)-Use of injunction to prevent city from condemning land for disposition of city sewage held unauthorized. Use of injunction to prevent city of fifth class from condemning land for disposition of city sewage held unauthorized, in view of Burns' Ann. St. 1914, §§ 929-940, inclusive, relating to method by which condemnation proceedings may be conducted, which furnish an adequate legal remedy.

said city has not adopted any ordinance providing a method for the exercise of its general powers for condemnation of the land.

There is a prayer that appellee be permanently enjoined from entering upon said lands and appropriating the same to its own use for the purpose of erecting thereon a sewage disposal treatment plant and its appurtenances, and from doing the things necessary to carry out such purpose. It will be observed that there is no averment as to whether the real estate was inside or outside the city limits.

Appellee's demurrer to this complaint was sustained, and appellant refused to plead further, but elected to stand by his complaint. Thereupon judgment was rendered against him that he take nothing, and that he pay the costs. From this judgment he appeals, assigning as the only error the action of the court in sustaining appellee's demurrer to his complaint.

It is appellant's contention that there is no statutory authority for exercising the right to appropriate his property for public use-that is, to exercise the right of eminent domain, under circumstances such as disclosed by the complaint, the substance of which is above set out, but we are not in harmony with this contention.

[1] It is expressly provided by subdivision 1 of section 8696, Burns' Revised Statutes

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes