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dends to the minority, such fraud will justify Alexander Belle, S. C. Bodner, and Wm. B. the appointment of a receiver. But in the Miller, all of Indianapolis, for appellant. case at bar there was no allegation denying U. S. Lesh and 0. S. Boling, both of Inthat the business was successfully managed dianapolis, for the State. and that substantial dividends were paid, while the special findings showed that the TRAVIS, J. Appellant was convicted for volume of business had increased more than violation of the Prohibition Law, $ 4, amendone-third and that substantial dividends had ed by Acts 1923, chapter 23, as charged in an been paid each year. So that, if it be grant- indictment, for having, on April 28, 1923, in ed that the law is correctly declared by the Marion county, Ind., unlawfully sold, bartercases which appellees have cited (as to which ed, exchanged, and given away intoxicating we decide nothing), those cases do not con- liquor to a person named in the indictment. trol the decision of this one. The mere fact The trial was by the court without a jury that a minority stockholder is excluded from upon appellant's plea of not guilty. Judg. holding office in a corporation and that the ment of a fine and imprisonment followed the majority stockholders hold all the oflices and finding of guilty by the court upon the secmanage the business is not cause for appoint- ond count of the indictment, from which ing a receiver, when the business is being judgment appellant appeals, and assigns as managed successfully in the interest of all error that the court erred in overruling his the stockholders. And neither are the facts, motion for a new trial, for the causes that as alleged in the complaint, that the owners the finding of the court is not sustained by of a majority of the stock, holding all of the sufficient evidence, and is contrary to law. offices, have paid themselves larger salaries (1) Appellant attempts to make the point than they should, and have blended their pri- that the motion for a new trial should have vate business with the business of the corpo- been sustained because there was no legal ration, and failed properly to account for evidence to sustain the finding of guilty by money of the corporation thus commingled the court, in that the evidence fails to estabwith their own. Neither a receivership nor lish the essential elements of the offense. He a dissolution is necessary to obtain an ac- fails utterly to show by his brief, or argucounting on behalf of the corporation. ment, an absence or lack of proof to sustain The petition for a rehearing is overruled. any particular essential element of the of.

fense as charged. Appellant neither made an objection to the introduction of any of

the evidence, nor moved to strike out any HARTMAN v. STATE. (No. 24486.)

evidence introduced. The only exception to

the court's ruling in the progress of the case (Supreme Court of Indiana. Nov, 7, 1924.) was to the overruling of the motion for a 1. Criminal law Om 1130(2)—Brief must indi. new trial. There was competent evidence in cate wherein evidence was insufficient.

proof of the venue, and the sale of intoxIt is defendant's duty, seeking to establish icating liquor on the 28th day of April, 1923, insufficiency of evidence to support verdict, to to the person named in the indictment, which state in brief that there was entire absence of includes every essential element of the ofevidence to support material element of offense, fense charged. He does not state that there whereby sufficiency of evidence becomes matter is an entire absence of evidence in support of law.

of any material element to sustain the of2. Criminal law 1159(3)-Ample unchal

fense charged, whereby the insufficiency of lenged evidence of guilt precludes Supreme the evidence to support the finding of guilty Court from considering defendant's evidence. becomes a question of law, which is the nec

Where there was ample unchallenged evi- essary duty of an appellant to do. Harito dence to sustain trial court's finding of guilty, v. State (Ind. Sup. 1923) 141 N. E. 57; Supreme Court is precluded from considering Young v. State (Ind. Sup. 1923) 138 N. E defendant's evidence, denying facts in support 258. of charge proved.

[2] There is ample evidence, unchallenged 3. Criminal law Om 1064 (4)—Alleged error to at the trial, to induce the court to make its

be available on appeal must have been pre- finding of guilty, and to sustain the finding sented to trial court by motion for new trial. of guilty on appeal, which precludes this

Unless alleged error in permitting objection- court from considering the evidence on beable evidence to be considered was presented half of appellant, denying the facts in supto trial court by motion for new trial, it is un- port of the charge as proven by the evidence availing on appeal.

on behalf of the state. Harito v. State, su

pra. Appeal from Criminal Court, Marion Coun

[3] To the point that there was mucb inty; James A. Collins, Judge.

competent evidence introduced at the trial Sam Hartman was convicted of violation it must be answered that appellant made no of the prohibition law, and he appeals. Af- objection to the admission of any evidence at firmed.

the trial, and does not by his points or prop em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(146 N.E.) ositions of law in his brief question any par U. S. Lesh and 0. S. Boling, both of Inticular evidence. Such an objection under dianapolis, for the State. the error assigned in this case will avail nothing, unless the alleged error of the trial GAUSE, J. Appellant was charged by afcourt in permitting the objectionable evi- fidavit in three counts with the crime of dence to be introduced was presented to the pandering, as defined by section 2356a, trial court by motion for a new trial for Burns' 1914. He filed a motion to quash the consideration and correction. Poehler v. affidavit, as a whole, on the grounds that the State (Ind. Sup. 1924) 142 N. E. 410.

facts stated do not constitute a public ofThe finding of the court is sustained by fense, and that the offense is not stated with sufficient evidence, and is not contrary to sufficient certainty. He filed a motion for a law,

continuance, which was overruled, and, upon Judgment affirmed.

a plea of not guilty, he was tried by a jury and found guilty, "as charged in the affidavit.” He then filed a motion in arrest of judgment, which attacked the sufficiency of

the affidavit as a whole. After filing his moANDERSON v. STATE. (No. 24462.) tion in arrest of judgment, he filed his mo

tion for a new trial. Each of these motions (Supreme Court of Indiana. Nov. 7, 1924.) were overruled. Judgment was rendered

upon the verdict, fining, appellant in the 1. Criminal law 970(7)—Indictment and in- sum of $300, and sentencing him to the formation om 137(7/Overruling motions di- state prison for not less than 2 nor more rected against affidavit as whole was not er. than 10 years. ror if any count was sufficient.

Appellant assigns as error the following: Where motions to quash, and in arrest were directed generally against affidavit in three

"(1) The court erred in overruling appelcounts charging pandering, as defined by Burns' lant's motion to quash the amended affidavit Ann. St. 1914, § 2356a, overruling of motions

herein. was not error if any count was sufficient.

“(2) The court erred in overruling appel

lant's motion for a continuance. 2. Indictment and information om 110(3)-01 (3) The court erred in overruling appel.

fense defined by statute may be charged in lant's motion for a new trial. language of statute.

“(4) The court erred in overruling appel. Where statute defines crime and states lant's motion in arrest of judgment." what acts constitute a violation thereof, charging offense in language of the statute is suffi

We will first notice the first and fourth ascient.

signments of error, which bring in question

the sufficiency of the affidavit. 3. Indictment and Information om 10(51) Each count of affidavit charging pandering three counts, and neither the motion to quash

[1] As before stated, the affidavit was in held sufficient.

Each count of affidavit charging pandering, nor the motion in arrest challenged each as defined by Burns' Ann. St. 1914, § 2356a, count separately, but both motions were diheld sufficient.

rected to the affidavit as a whole. Therefore,

if either count is sufficient, no error was 4. Criminal law 1064(3)Rullng on motion committed in overruling such motions. for continuance cannot be questioned by in

[2, 3] Said affidavit, omitting the formal dependent assignment of error.

parts, is as follows: Ruling on motion for continuance cannot be called in question by independent assign

"Minnie L. Snyder, for her amended affidavit ment of error.

herein, swears she is informed and believes that

Oscar Anderson, on or about the 11th day of 5. Criminal law Ow946_Filing of motion in ar- December, 1922, at and in the county of Dela

rest in advance of filing of motion for new ware, state of Indiana, did then and there untrial held waiver of right to file latter mo- lawfully and feloniously procure one G tion.

M

a female, for an inmate of a house Accused, in filing motion in arrest of judg- of prostitution then and there kept by him, the ment in advance of filing motion for new trial, said Oscar Anderson, waived right to file latter motion, where he

"Count 2. knew causes for new trial when he filed his motion in arrest

"And affiant aforesaid, on her oath aforesaid, for a second count of affidavit herein, swears

that she is informed and believes that Oscar Appeal from Circuit Court, Delaware

Anderson, on or about the 11th day of DecemCounty; L. A. Guthrie, Special Judge. ber, 1922, at and in the county of Delaware,

Oscar Anderson was convicted of pander- state of Indiana, did then and there unlawfully ing, and he appeals. Affirmed.

and feloniously, by certain promises, threats,

violence, devices, and schemes, induce, perWm. A. McClellan, John McPhee, and suade, and encourage one G

- M Claude C. Ball, all of Muncie, for appellant. I female person to become an inmate of a house

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

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of ill fame then and there kept by him, the state, by numerous cases, that the filing of a said Oscar Anderson.

motion in arrest in advance of filing a mo"Count 3.

tion for a new trial, cuts off the right to “And affiant aforesaid, on her oath aforesaid, apply for a new trial, except in cases where for a third count of affidavit herein. says that the causes for a new trial were not known at she is informed and beleives that Oscar Ander- the time of filing the motion in arrest. Yason, on or about the 11th day of December, zel v. State, supra, and cases cited therein. 1922, at and in the county of Delaware, state Since the exception to the general rule is of Indiana, did then and there unlawfully and not applicable in this case, appellant is feloniously, by certain promises, threats, deemed to have waived his right to file a schemes, and devices, cause, induce, persuade, motion for a new trial, and the assignment and encourage one G M— who was based thereon will not be considered. then and there an inmate of a house of prostitution then and there kept by him, the said

Judgment affirmed. Oscar Anderson, to be and remain in said house of prostitution for the purpose of prostitution, contrary to the form of the statute in such cases made and provided and against the peace

GAFILL V. BRACKEN, State Auditor. * and dignity of the state of Indiana."

(No. 24429.) Each count charges a violation in sub

(Supreme Court of Indiana. Nov. 7, 1924.) stantially the language of the statute defining the crime. Where a statute defines a

1. Licenses m5_Legislative power to impose crime and states what acts shall constitute

taxes on use of property or sale thereof is

unlimited, if its exercise does not involve ina violation thereof, it is sufficient to charge

vidious discrimination. the offense in the language of the statute.

Legislative power to impose taxes on use Asher v. State (Ind. Sup.) 142 N. E. 407, and of property for certain purposes within state, cases cited.

or on sale thereof within state, is untrammeled, Appellant in his brief does not attempt to if exercise of it does not result in invidious point out wherein the affidavit, or any count discrimination. thereof, is insufficient, but contents himself 2. Licenses Cm7(7) – Act imposing tax on with the statement of some general principles

gasoline sold within state held not invalid as which would apply to any criminal charge, "property tax." such as that the facts constituting the of Acts 1923, c. 182, which imposes tax on fense must be stated in plain and concise gasoline sold in state for use in operating autolanguage; that the affidavit must be cer- mobiles, held not a "property tax," in violation tain and definite, so as to fully inform the of Const. art. 10, § 1, since use of gasoline defendant of the nature of the charges and not gasoline itself is taxed. against him, and that, if the facts stated do [Ed. Note.--For other definitions, see Words not constitute a public offense, or if the of- and Phrases, First and Second Series, Propfense is not stated with sufficient certainty, erty Tax.] a motion to quash should be sustained. No 3. Statutes oma 121(1)-Fact that title of act attempt is made to apply any of these prin imposing gasoline tax is broader than act held ciples to the affidavit in question, and it is not to render act invalid. not pointed out wherein any of such princi Title of Act 1923, c. 182, imposing gasoline ples are violated. This might well be deemed tax, embraces subject-matter of act, and fact a waiver of any objection to the affidavit that it is broader than body of act in reciting that might exist. Pittsburgh, etc., R. Co. v. license fee is to be imposed on use of gasoline, Lightheiser (1906) 168 Ind. 438, 460, 78 N. while act imposes tax only on use of gasolina

for propelling automobiles upon public highE. 1033; Ewbank's Manual of Practice (2d

ways held not to render act invalid. Ed.) & 180a. However, it appears that each count of the affidavit is clearly sufficient to 4. Eminent domain Om2(1)-That gasoline tax charge a crime under the statute.

act requires dealers to make returns of sales {4] As to the second assignment of error,

and to collect and pay tax held not to render

act invalid. namely, the overruling of appellant's motion for a continuance, it is a well-settled rule

That Act 1923, c. 182, which imposes tax of practice in this state that the ruling on biles, requires dealers to make returns of sales

on gasoline to be used for operating automosuch a motion cannot be called in question and to collect and pay tax, held not to render by an independent assignment of error. Ya

act void as violating Constitution forbidding zel v. State (1908) 170 Ind. 535, 539, 84 N. taking of services without compensation. E. 972.

5. Licenses 5 - State may select use of [5] As to the third assignment of error,

gasoline for propelling vehicles on highways namely, the overruling of appellant's motion

as subject of taxation. for a new trial, it appears from the record

State may select use of gasoline for prothat appellant filed a motion in arrest of pelling vehicles on highways of state as a subjudgment before he filed his motion for a new ject of taxation from which to raise revenue to trial. It has been uniformly held in this I construct, maintain, and repair highways. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexon

*Rehearing denied 146 X. E. 109.

(146 N.E.) 6. Taxation 41-Legislative power to select | 14. Constitutional law e230(1), 287-Act im

subjects for taxation is not constitutionally posing gasoline tax held not violative of Four. restricted, if law operates without discrim teenth Amendment. ination.

Act 1923, c. 182, which imposes tax of two Selection of subjects for taxation is a cents on a sale of each gallon or fraction therelegislative power not restricted by Constitution of of gasoline for propelling automobiles on 80 long as law operates without discrimination public highways of state, does not violate U. upon all within tasing district.

S. Const. Amend. 14. 7. Taxation Om 4-Legislative power to tax for

Appeal from Superior Court, St. Joseph constructing, maintaining, and repairing highways is unlimited, except as restricted by County; Lenn J Oare, Judge. Constitution,

Suit by Bruce Gafill against Robert BrackLegislative power in matters of taxation for en as State Auditor. From a judgment susbuilding, maintaining, and repairing highways taining a demurrer, plaintiff appeals. Afis unlimited, except as restricted by state or firmed. federal Constitution.

Hubbard, Farabaugh & Pettengill, of 8. Taxation 40(1)-Exact equality as be- South Bend, Harman & Jay, of Elkhart, and tween different subjects of taxation not re- Walter R. Arnold, of South Bend, for appelquired, because impossible.

lant. Exact equality as between different sub U. S. Lesh and Dale F. Stansbury, both of jects of taxation is not required, being impossi- Indianapolis, for appellee. ble of attainment. 9. Licenses 7(3)-Act imposing tax on sale EWBANK, J. Appellant sued appellee, as of gasoline for automobiles held not invalid auditor of state, seeking to restrain him, by because not taxing use of any other power. injunction, from taking any steps toward en

Act 1923, c. 182, which imposes tax on forcing the act which imposes a tax of two sale of gasoline for automobiles, is not invalid cents a gallon on gasoline sold or used for because not taxing operation of vehicles by certain purposes (chapter 182, Acts 1923, pp. any other power.

532–537), particularly demanding that he be 10. Constitutional law cm 70(3)-Legislative

forbidden to expend any money from the state classification of automobiles for purpose of treasury or to incur any expense on behalf taxation held not subject to control of courts. of the state to put the act into effect, and

Since Legislature may classify subjects of that he be forbidden to exact payment of the taxation so as to put automobiles propelled by tax of two cents per gallon on such gasoline. gasoline in a class by themselves, its action A demurrer was sustained to the complaint, with respect to such matters is not subject and upon the refusal of appellant to amend to control by courts.

or plead further judgment was rendered that

he take nothing by his suit, and that appelII. Licenses m7(5) - That part of tax recoipts paid by one county may or will be used

lee recover costs. Appellant has assigned as

error that the trial court erred in sustainto build roads in other counties held not to render gasoline tax act invalid.

ing the demurrer to his complaint. Fact that under Act 1923, c. 182, which

In substance, the complaint alleged that imposes gasoline tax, part of tax receipts, defendant (appellee) was the auditor of state paid into state treasury by residents of one and was sued in that capacity; that plaincounty, may or will be used to build roads in tiff (appellant) then was and for many years other counties held not to render act invalid. had been a resident taxpayer of the city of

South Bend, in Portage township, St. Joseph 12. Licenses 7 (2) — Act imposing tax on county, Ind., paying taxes each year on real gasoline for automobiles does not require and personal property therein, and also a purchase in state of more than sufficient to poll tax; that he then owned and was oper, reach state line. Act 1923, C. 182, which imposes tax on

ating an automobile, run by the internal sale of gasoline for propelling automobiles on

combustion of gasoline, and used gasoline public highways of state, does not require per- for that purpose in said St. Joseph county, son near state line to purchase in state more and also in adjacent states, both in the conthan sufficient gasoline to carry him to state duct of his business and for pleasure, which line.

automobile could not be operated by any oth

er power; that he was a stockholder in a 13. States Omw 130—Act imposing gasoline tax designated corporation engaged in the busiand providing for rebates held itself an appropriation for payment of claims for rebates. other petroleum products in the city of South

ness of selling and distributing gasoline and Act 1923, c. 182, which imposes a tax on gasoline, and provides for rebate of money paid business, and in other parts of the state of

Bend, where it had its principal place of for gasoline not used in operating motor cars, itself makes necessary appropriation for pay- Indiana and in adjoining states, owning 70 ment of rebates, and does not permit withdraw filling stations where gasoline and other peal of money from treasury without appropria- troleum products were sold to consumers, tion.

and operating 31 tank wagon trucks which For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

were run by the internal combustion of gas- 1 by the internal combustion of gasoline, are oline in delivering such gasoline and other operated solely in and upon streets constructpetroleum products to its customers; that ed and paid for by means of assessments said company thereby hauled gasoline on against abutting property and by city taxthe highways of Indiana and adjoining states ation, and many other such vehicles which to fill orders received by mail, telegraph, are operated and driven from Indiana into and telephone, and verbally; that in this other states and foreign countries in carry. manner it sold and delivered gasoline to pur- ing passengers and goods for hire; that chasers for use in propelling stationary en- many persons from adjoining states drive ingines, farm tractors, motor boats, airplanes, to Indiana with more than 20 gallons of gasand aircraft, and for cleaning and dyeing oline in the tanks of their cars; that many and other commercial uses other than the op- users of gasoline for propelling such vehicles eration of motor vehicles on highways; that buy their supply in other states and procure the gasoline sold to many purchasers was de- it to be shipped to them in Indiana in the livered to them in other states than Indiana, original, unbroken packages; that many ve and was used entirely in such other states, hicles are operated upon the highways of Inand much of the gasoline used by said com- diana in said county by electricity, kerosene, pany in operating its said tank wagon trucks steam, muscular power, and by other means was used in propelling them upon the high-than the internal combustion of gasoline, ways of other states than Indiana ; that de- which vehicles are used in the same way, mand had been made on the directors and for like purposes, and with like effect upon officers of said corporation to bring this ac- the highways as the 'gasoline propelled ve tion, but had been refused; that to comply hicles; and that said act is unconstitutional with said act the corporation would be re- for each of several alleged reasons. quired to keep books, records, papers, re The act of which the constitutionality is ceipts, invoices, and equipment pertaining to thus attacked (chapter 182, Acts 1923, p. 532) its sales of gasoline and to collect and pay is entitled: over to the state of Indiana the tax on all gasoline sold by it, and make verified re

"An act imposing a license fee on the use of ports at great expense, all without compen: the payment, collection and distribution-there

gasoline in the state of Indiana, providing for sation for the services so rendered; that of, prescribing certain exemptions therefrom plaintiff had bought a quart of gasoline for and prescribing penalties for the violation there. use in cleaning clothing, furniture, and of." other articles, and for household uses, since the law went into effect, and that he would [1, 2] It enacts "that, a license fee of two use in the operation of his automobile 500 cents (2c.) per gallon, or fraction of a galgallons per year, while his said corporation lon, is hereby imposed on the use of all gaswould use in the operation of its tank wag- oline used in this state for any purpose on trucks 5,000 gallons per year purchased whatsoever," to be collected by the dealer in the state of Indiana ; that defendant was selling to any one who does not purchase for threatening to expend the $2,000, appropri- the purpose of resale, and to be paid to the ated by said act in the preparation and auditor of state on or before the 15th of the printing of blank forms of reports, receipts, next month, at which time a report of the and other things which he deemed necessary total number of gallons thus sold in the to provide for the administration of the act; month shall be made under oath. For the that for six weeks past, since the date fixed purpose of enforcing the act the auditor of by said act for imposing the tax of two cents state is authorized to examine the books and per gallon on gasoline, defendant had been papers of any dealer pertaining to the sale and still was enforcing the provisions of the of gasoline, being forbidden to divulge the act and requiring all dealers to collect from information thus acquired, and the dealer plaintiff and his said corporation the said who fails to make a proper return and to tax on all gasoline purchased by them, and pay over the tax on all gasoline sold is made refusing to sell to them unless they did. so, liable to punishment by fine and imprisonthereby making it impossible for them to get ment. Persons who buy or use gasoline for any gasoline without paying the tax; that the purpose of operating stationary gas enSt. Joseph county is populous and wealthy, gines, tractors used for agricultural purposes, and its inhabitants own and operate upon the motor boats, airplanes or air craft, or for highways therein thousands of motor ve- cleaning or dyeing or other commercial use, hicles which are operated by power derived except propelling motor vehicles operated in from the internal combustion of gasoline, in whole or in part upon the public highways which they consume 50,000 gallons of gas- of the state, may receive back the license fee oline, each day, and in the county are 320 so paid upon making a statement of the miles of improved highways, being greatly amount so purchased and used for purposes in excess of the amount of gasoline sonsumed other than propelling motor vehicles so operfor that purpose in some other counties that ated thereon, and presenting it, with the orhave less miles of improved roads; that in iginal invoices of such purchases, to the authe city of South Bend thousands of motor ditor of the state within 90 days after the vehicles kept for hire, which are propelled date of the purchase as shown by the invoice.

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