Sidebilder
PDF
ePub

tion of the board or tribunal, are entitled , time, if such cancellations were made by any time before jurisdiction is assumed by the original signers. But the specific questhe board or tribunal to revoke their action. tion here is whether the withdrawal of names Withdrawal of the names does not render in- by the electors is allowable after the 30offectual the action of the board or tribunal day period. because none has been taken, but simply null We are strengthened in our conclusion that ifies the invoking of the jurisdiction. “The the filing of the remonstrance within the jurisdiction of the board of county commis- statutory period makes nugatory the action sioners to make the final order for the im- of the county board, and renders it imposprovement, under these statutes, is special, sible to withdraw names after the 30-day and conditioned upon the consent, at the time period has elapsed, by the fact that section the final order is to be made, of a majority 4736, General Code (106 0. L., 397), formerly of the resident landholders, who are to be read as follows: charged with the costs of the improvement.”

"The county board of education shall arrangeHays v. Jones, supra.

the school districts according to topography and The filing of a remonstrance under section population in order that the schools may be 4376, General Code, on the contrary, does not most easily accessible to the pupils, and shall invoke the jurisdiction of the county board of file with the board or boards of education in the education. The board of education in the territory affected, a written notice of such profirst instance has power to create a school posed arrangement, which said arrangement district from one or more school districts shall be carried into effect as proposed unless, or parts thereof without the filing of a peti- within thirty days after the filing of such notice tion by the electors, but the remonstrance ity of the qualified electors of the territory af

with the board or boards of education, a majorwhen duly filed makes ineffectual the ac- fected by such order of the county board, file a tion of the board.

written remonstrance with the county board Moreover, in none of the above cited cases against the arrangement of school districts so was a statute involved which read in unam- proposed." biguous terms, as does section 4736, that the action of the official board in question shall By an act of the Legislature passed May not take effect if a majority of the qualified 28, 1919 (108 0. L., pt. 1, 707), this section electors residing in the territory affected, was amended to read as it does to-day, that: within 30 days from the date of the action, file a written remonstrance with the county shall not take effect if a majority of the quali

“Such action of the county board of education board of education.

fied electors residing in the territory affected If this provision of the statute means any- by such order shall, within 30 days from the thing, the action of the county board of time such action is taken, file with the county education taken on May 6, 1924, was nullified board of education a written remonstrance at the end of the 30-day period by the filing against it.” of the remonstrance, and could not be resuscitated by the withdrawal of the names

[2] This amendment removed any uncer. originally signed to the remonstrance after tainty in the act, if any theretofore existed, that period had expired.

and specifically gave the filing of the remonWe have no doubt that in the given case strance the effect contended for by defendthe signers to the remonstrance could have ant in error. “When an existing statute is withdrawn their names before and up to the repealed and a new and different statute upend of the 30-day period. It is only when on the same subject is enacted, it is presumed the 30-day period has elapsed that the num- that the Legislature intended to change the ber of names upon the remonstrance is defi-effect and operation of the law to the extent nitely fixed. The remonstrance must be of the change in the language thereof." placed in the hands of the county board of Board of Education of Hancock County v. education within 30 days from the time of Boehm, 102 Ohio St. 292, 131 N. E. 812. creation of the new school district by the

For the above reasons the judgment will county board, but the remonstrance cannot

be affirmed. be considered as filed until the 30-day period

Judgment affirmed. has elapsed. Names could no doubt be added to the remonstrance within that time by MARSHALL, C. J., and JONES. MATqualified electors, and names could also be THIAS. DAY, ALLEN, KINKADE, and canceled upon the remonstrance within that ROBINSON, JJ., concur.

[ocr errors][ocr errors][ocr errors]

(146 N.E.)

ting of the contract under the original proSTATE ex rel. PORTER V. CLARK et al., posals bad been abandoned by the county Board of Com’rs of Sandusky County. commissioners, and no contract for the con(No. 18514.)

struction of a bridge thereunder was con(Supreme Court of Ohio. March 10, 1925.) templated, and that, afterwards, other pro

ceedings were had by the county commission. (Syllabus by Editorial Staff.)

ers, a readvertisement made for proposals, Appeal and error 297, 1088—No motion for and a contract entered into for the construc

new trial being filed in Court of Appeals nor tion of the bridge. The Court of Appeals agreed statement or finding of fact, Supreme found that as to the latter proceedings the Court cannot pass on alleged errors of law. plaintiff was not entitled to equitable relief.

Where no motion for new trial was filed by injunction. in Court of Appeals, nor was there agreed The journal entry of the Court of Appeals statement of facts, nor findings of facts or concludes as follows: conclusions of law, Supreme Court cannot determine questions of law urged in error prom the only question involved in said action and

"And the court finds and determines that ceeding, especially where there was no bill of exceptions disclosing evidence on which de- to be determined by the court under the evi

dence and facts, as shown, is the question as cree was based.

to the costs of said action."
Error to Court of Appeals, Sandusky
County,

The Court of Appeals thereupon adjudged

the costs, including an attorney fee of $250, Action by the State of Ohio, on the rela- against the board of county commissioners. tion of Harry Porter, against J. L. Clark and From this judgment error was prosecuted to others, as the Board of County Commission- this court. ers of Sandusky County, for an injunction.

There was no motion for a new trial filed Judgment for defendants, and on appeal to in the Court of Appeals, nor was there an Court of Appeals cause was heard de novo, agreed statement of facts nor findings of fact and judgment rendered for defendants, and and conclusions of law had in that court. It plaintiff brings error. Affirmed.—[By Edi- is therefore impossible for this court to detertorial Staff.]

mine the legal questions attempted to be John B. Stahl, H. C. De Ran, and A. V. urged by counsel for plaintiff in error. This Baumann, Jr., all of Fremont, for plaintiff is especially true since there is no bill of exin error.

ceptions disclosing the evidence upon which G. C. Sheffler, Pros. Atty., and Harry Garn, the Court of Appeals based its decree. both of Fremont, for defendants in error.

For the reasons stated, the judgment of the

Court of Appeals is affirmed. PER CURIAM. Plaintiff in error, as a Judgment affirmed. taxpayer, brought an action in the court of

MARSHALL, C. J., and JONES, MATTHIcommon pleas seeking to enjoin the county AS, DAY, ALLEN, and ROBINSON, JJ., concommissioners from awarding a contract for

cur.
a bridge improvement, and for other equi-

KINKÅDE, J., not participating.
table relief. The cause was heard in the
court of common pleas on plaintiff's second
amended petition and the answer of the coun-
ty commissioners thereto. In addition to

DUNCAN V. STATE. (No. 24602.)
denying many material, issuable facts, the
answer contained other allegations pleaded in (Supreme Court of Indiana. March 10, 1925.)
avoidance.

1. Indictment and information om 125(31)The common pleas court, after disposing of Indictment for receipt of intoxicating liquor various motions and a demurrer to the an- from common carrier, and possession of liqswer, found in favor of the commissioners uor so received, held not bad for duplicity. and against the plaintiff upon the issues join- Under Burns' Ann. St. Supp. 1921, $ 83560 ed, and dismissed the petition. The cause (Acts 1917, c. 4, § 15), indictment charging dewas thereupon appealed to the Court of Ap fendant did “unlawfully receive from a peals. The record discloses that in the latter

mon carrier, and then and there unlawfully court no motion or demurrer was interposed possess intoxicating liquor received from a com

mon carrier," held not bad for duplicity. to any pleading, but the cause was there heard de novo upon the pleadings and evi- 2. Indictment and information om 125(20)– dence. The final decree of the Court of Ap

Prohibited acts mentioned disjunctively in peals discloses that while, under plans then

statute may be charged conjunctively in sin

gle count. existing and under an advertisement for pro

Where statute makes it a crime to do any posals received pursuant thereto, plaintiff

one of several things mentioned disjunctively, may bave been entitled to an injunction at all of which are punished alike, all of such acts the time the suit was brought in the court may be charged conjunctively in single count of common pleas, since that time the let-lof indictment.

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

[ocr errors][ocr errors]

com

3. Intoxicating liquors am 236(6/2)-Evidence junctively, all of which are punished alike,

held insufficient to sustain conviction for re-all of such acts may be charged conjunctively ceipt of liquor from common carrier, and in a single count, as one offense, without for possession of liquor so received.

making the count bad for duplicity. State v. Evidence held insufficient to sustain convic- Schipper (Ind. Sup.) 141 N. E. 330, and aution for receipt of intoxicating liquor from com

thorities cited; Lennard v. Stațe, 191 Ind. mon carrier, and for possession of liquor so received.

371, 132 N. E. 677; Howard v. State, 191 Ind.

232, 131 N. E. 403; Bishop's New Criminal Appeal from Circuit Court, Delaware Coun- Procedure, vol. 1, § 436. The motion to quash ty; C. W. Deorth, Judge.

was properly overruled.

[3] All the evidence was given by three James Duncan was convicted of unlawful witnesses, two of whom testified only as to ly receiving intoxicating liquor from com- the identity of certain bottles of liquor mon carrier, and of possessing intoxicating brought to police headquarters by the arliquor so received, and he appeals. Reversed, resting officer, who said that he took them with directions for new trial.

from appellant's pockets. The third witness A. E. Needham, of Muncie, for appellant.

testified that he was a police officer, and U. S. Lesh, Atty. Gen., for the State. that, having seen appellant coming across a

vacant lot toward the rear entrance of the

Delaware Hotel, in Muncie, Ind., about 11 EWBANK, J. This is an appeal from a

o'clock on the night when the arrest was judgment sentencing appellant to imprisonment for three months and the payment of made, he met him in the alley at that ena fine of $250 for an alleged violation of the trance, found that appellant had three pint

bottles of white mule whisky in as many Prohibition Law. The verdict found him guilty “as charged in the second count of different pockets, and placed him under arthe affidavit,” and appellant moved for a tles of whisky to the police station, and

rest; that he took appellant and the botnew trial, for the alleged reason that the ver-turned the bottles over to the desk sergeant, dict is not sustained by sufficient evidence. Before the trial appellant had filed a mo, and they were introduced in evidence with

by whom they were produced at the trial, tion to quash this count of the affidavit, and out objection. He further testified that apoverruling that motion and overruling the motion for a new trial are assigned as er- pellant was the manager of a bowling alley

under the Delaware Hotel, but that he did rors. [1] The second count of the affidavit, as set not know when, where, or from whom appel

lant had obtained the liquor, whether from out in appellant's brief, charged that on, etc., at, etc., appellant “did then and there unlaw.chased it, or found it, or manufactured it,

a carrier or anybody else, or whether he purfully receive from a common carrier, and did then and there unlawfully possess intox- but only knew that appellant had it in his icating liquor received from a common car pockets that night in the alley back of the

hotel. rier in this state, contrary," etc. The only

This evidence fell short of proving that apobjection to the sufficiency of this affidavit suggested by appellant is that it charged two pellant had committed the particular offense offenses, and therefore was bad for duplicity, with which he was charged and of which he

was convicted, of receiving intoxicating liqThe statute declares that

uor from a carrier, and having possession of "It shall be unlawful for any person in this such liquor received from a carrier. It wholstate to receive directly or indirectly intoxicat-ly failed to prove that the liquor ever had ing liquors from a common or other carrier been received by anybody from a carrier, or or for any person in this state to possess in that it ever had been transported by or bad toxicating liquors, received directly or indirectly from a common or other carrier in the been in the possession of a carrier from state," etc. Section 83560, Burns' Supp. 1921 whom it might be received. For lack of (section 15, c. 4, p. 23, Acts 1917).

such evidence the motion for a new trial

should have been sustained. [2] And where a statute makes it a crime The judgment is reversed, with directions to do any one of several things mentioned dis-'to sustain appellant's motion for a new trial.

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

tria.

(146 N.E.)

Appeal from Circuit Court, Knox County ; ANDREWS V. STATE. (No. 24780.) Thos. B. Coulter, Judge. (Supreme Court of Indiana. March 10, 1925.)

Perry Andrews was convicted of operating

a motor vehicle while he was intoxicated, 1. Criminal law w264-What “arraignment” | and he appeals. Reversed, with directions to consists of stated.

grant new trial. An “arraignment" consists of informing a

James M. House and Padgett & Clark, all defendant of the charge against him by reading the indictment or affidavit to him by the clerk of Vincennes, for appellant. of the court, unless defendant waives such U. S. Lesh, Atty. Gen., for the State. reading, after which he must be required to plead to the charge, either in abatement or in TRAVIS, C. J. This case is a criminal bar, unless the court, for cause shown, grants prosecution, brought by indictment, which further time to defendant to plead, in view of charges that the appellant operated a motor Burns' Ann. St. 1914, $ 2068.

vehicle while in an intoxicated condition. [Ed. Note. For other definitions, see Words Acts 1913, c. 300, as amended by Acts 1923, and Phrases, First and Second Series, Ar

c. 123.

The record discloses that appellant raignment.)

waived arraignment and was granted time 2. Criminal law ew 261(1)-Reading of indict by the court to plead. Later, without any ment or affidavit to accused, or waiver there record that appellant entered a plea, or that of, does not dispense with necessity of plea by he stood mute, and a plea of not guilty beaccused.

ing entered by the court, he was put upon The reading of an indictment or affidavit trial by a jury, which returned a verdict of to accused, or the waiver thereof by him, does guilty. Appellant's motion for a new trial not, answer for, take the place of, waive, or for the reason that the verdict was contrary excuse accused's plea.

to law was overruled. Judgment was ren3. Criminal law Om 264–Arraignment not com- dered upon the verdict, from which appellant plete without accused's plea, entered either

appeals. Error is assigned upon the overvoluntarily or by court.

ruling of the motion for a new trial. Arraignment is not complete without ac

(1) The two steps in the procedure, the cused's plea, entered either voluntarily or by reading of the charge or the waiver therecourt, to charge.

of, and the plea, upon which the decision of 4. Criminal law am 268—Plea forms issue to be this appeal rests, are plainly fixed by stat

tried, without which nothing is before court ute. The arraignment consists of informing or jury for trial.

the defendant of the charge against him by Plea forms issue to be tried, without which reading the indictment or affidavit to him nothing is before court or jury for trial, in by the clerk of the court, unless the defendview of Burns' Ann. St. 1914, § 2072.

ant waives such reading, after which the de5. Criminal law Om 269—Accused may plead to | fendant must be required to plead to the

charges against him, either orally or in writ. charge, either in abatement or in bar, uning.

less the court, for cause shown, grant furAccused may plead to charges against him, ther time to the defendant to plead. Seceither orally or in writing.

tion 2068, Burns' 1914. 6. Criminal law em 268-Accused's oral plea

[2, 3] The reading of the indictment or afmust appear by record entry; plea, if writ. fidavit to the accused, or the waiver thereof ten, becomes part of record.

by him, does not answer for, take the place Accused's plea, if oral, must appear by rec-of, waive, or excuse the plea by the accused. ord entry, and, if it is written, the plea be- The arraignment is not complete without the comes part of the record.

plea by the accused, either voluntarily or by 7. Criminal law Cm 261(1)-Verdict of guilty Dict. 239.

the court, to the charge. 1 Bouvier's Law held contrary to law as being without issue upon which it could be based, where there was

[4] The plea forms the issue to be tried, no plea to charge.

without which there is nothing before the Verdict of guilty for operating a motor ve

court or jury for trial. This step in the crimhicle while accused was intoxicated, in viola- inal procedure of this state is so firmly laid tion of Acts 1913, c. 300, as amended by Acts that the general assembly provided that, 1923, c. 123, held contrary to law as being when the defendant stands mute or refuses without issue on which it could be based, where to plead to the charge against him, the court accused entered no plea to the indictment, must enter a plea of not guilty for him. Secand the court did not enter plea of not guilty tion 2072, Burns' 1914; Weaver v. State, 83 pursuant to Burns' Ann. St. 1914, & 2072.

Ind. 289; Bennett v. State, 188 Ind. 380, 123 8. Criminal law 934 - That verdict N. E. 797; Pritchard v. State, 190 Ind. 49,

contrary to law held properly presented by 127 N. E. 545.
motion for new trial.

(5, 6] The defendant may plea to the That verdict was contrary to law held prop- charge against him, either orally or in writerly presented by motion for new trial. ing. If the plea be oral, it must appeąr by a

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indeses 146 N.E.-52

[ocr errors][ocr errors][ocr errors][ocr errors][ocr errors]

was

record entry, and, if written, the plea be , property, evidence of facts sufficient to create comes a part of the record.

in mind of accused belief that goods were stolen [7] It is apparent from the record that, is sufficient. the appellant not having entered a plea to 7. Receiving stolen goods em8(3)—Unexplain. the indictment, and a plea of not guilty in ed possession not prima facie evidence of his behalf not having been entered by the guilt. court, there was no issue in the case. It Rule that possession of stolen property, must follow that there was nothing to try, unless explained, is prima facie evidence of or upon which to rest a verdict.

possessor's guilt, does not apply to offense [8] It was error to overrule the motion for of receiving stolen property. a new trial, and the verdict was contrary to 8. Receiving stolen goods Ew8(3)-Must be evlaw. The question is properly presented by idence of each essential element of offense. the motion for a new trial. Shoffner v. State

To sustain. conviction of receiving stolen (1884) 93 Ind. 519; Billings v. State, 107 Ind. goods, there must be some evidence tending to 51, 6 N. E. 914, 7 N. E. 763, 57 Am. Rep. 77; prove each essential element of offense. Pritchard v. State, 190 Ind. 51, 127 N. E. 545.

Appeal from Superior Court, Elkhart CounThe trial court is ordered to sustain ap- tý; William B. Hile, Judge. pellant's motion for a new trial.

Allen Bowers was convicted of receiving Judgment reversed.

stolen property, and he appeals. Reversed, with instructions.

Church & Chester, of Elkhart, for appelBOWERS v. STATE. (No, 24776.)

lant.

U. S. Lesh, Atty. Gen., for the State. (Supreme Court of Indiana. March 10, 1925.) 1. Indictment and information om 125 (42)

WILLOUGHBY, J. This is a prosecution by State need not elect between counts charging, affidavit. The affidavit is in two counts, and in respectively, larceny and receiving stolen the first count charged that on or about the property.

22d day of August, 1921, at the county Under Burns' Ann. St. 1914, 8 2056, de- of Elkhart and state of Indiana, appellant fendant's motion to require state to elect be. I did then and there unlawfully and felonioustween countg in affidavit charging larceny and i ly take, steal, and carry away of the personal receiving stolen property, held properly denied, goods and chattels of the Cleveland, Cincinwhere they referred to same property.

nati, Chicago & St. Louis Railway Company, 2. Criminal law 822 (6)-Charges consid-two 34x4 size Kelly-Springfield brand auto

ered together held to state all facts necessary mobile tires of the value of $60, and in the to conviction.

second count charges that on or about the Charges on receiving stolen goods, when | 22d day of August, 1921, at the county of considered together as they must be, held to Elkhart and state of Indiana, appellant did state all facts necessary to conviction.

then and there unlawfully and feloniously 3. Criminal law O 822(1) Reversal not buy, conceal, and aid in the concealment of granted, unless instructions considered as two 34x4 size Kelly-Springfield brand autowhole are erroneous.

mobile tires, theretofore unlawfully and feIn view of rule that instructions should be loniously stolen by John Doe and Richard considered in entirety, instruction, if erroneous,

Roe, whose true is not ground for reversal, where the instruc

were unknown. tions considered as whole state the law cor- Trial by jury on a plea of not guilty. The rectly.

jury returned a verdict finding the appellant

guilty on the second count of the affidavit, 4. Criminal law Ow825(2)-To be in position

to complain of instruction as not sufficiently and found the value of the goods to be $52, full, party must tender instruction.

and the age of the appellant to be 33 years. Complaint of defendant that instruction on

After a motion for a new trial was overreceiving stolen property was not full enough ruled and exceptions taken, judgment was to state law clearly, cannot be considered, rendered on the verdict, fixing the fine in where he did not tender instruction on the sub- the sum of $100, and that appellant be imject.

prisoned in the Indiana state prison not less 5. Receiving stolen goods Ow3 Goods must than 1 year nor more than 14 years; that retain stolen character at time received. he be disfranchised and rendered incapable

In order to convict of receiving stolen of holding any office of trust or profit for a goods, goods must retain their stolen charac- period of 2 years, and that he pay and satter at time received by defendant.

isfy the costs. Appellant appeals, and as6. Receiving stolen goods Ow8 (4)-Proof of signs as error that the court erred in over

facts sufficient to create belief that goods ruling his motion for a new trial. Appellant stolen, sufficient,

claims that the court erred in overruling his While guilty knowledge on part of defend- motion, made at the conclusion of all the ant is essential to conviction of receiving stolen evidence, to require the state to elect upon

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

names

« ForrigeFortsett »