(146 N.E.) Wting of the contract under the original proSTATE ex rel. PORTER v. CLARK et al., posals had been abandoned by the county Board of Com'rs of Sandusky County. (No. 18514.) commissioners, and no contract for the construction of a bridge thereunder was con (Supreme Court of Ohio. March 10, 1925.) templated, and that, afterwards, other pro (Syllabus by Editorial Staff.) ceedings were had by the county commissioners, a readvertisement made for proposals, Appeal and error 297, 1088-No motion for and a contract entered into for the construcnew 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 statement of facts, nor findings of facts or conclusions of law, Supreme Court cannot determine questions of law urged in error proceeding, especially where there was no bill of exceptions disclosing evidence on which decree was based. Error to Court of Appeals, Sandusky County. Action by the State of Ohio, on the relation of Harry Porter, against J. L. Clark and others, as the Board of County Commissioners of Sandusky County, for an injunction. Judgment for defendants, and on appeal to Court of Appeals cause was heard de novo, and judgment rendered for defendants, and plaintiff brings error. Affirmed. [By Editorial Staff.] John B. Stahl, H. C. De Ran, and A. V. Baumann, Jr., all of Fremont, for plaintiff in error. G. C. Sheffler, Pros. Atty., and Harry Garn, both of Fremont, for defendants in error. PER CURIAM. Plaintiff in error, as a taxpayer, brought an action in the court of common pleas seeking to enjoin the county commissioners from awarding a contract for a bridge improvement, and for other equitable relief. The cause was heard in the court of common pleas on plaintiff's second amended petition and the answer of the county commissioners thereto. In addition to denying many material, issuable facts, the answer contained other allegations pleaded in avoidance. The journal entry of the Court of Appeals concludes as follows: the only question involved in said action and to be determined by the court under the evidence and facts, as shown, is the question as to the costs of said action." "And the court finds and determines that The Court of Appeals thereupon adjudged the costs, including an attorney fee of $250, against the board of county commissioners. From this judgment error was prosecuted to this court. There was no motion for a new trial filed in the Court of Appeals, nor was there an agreed statement of facts nor findings of fact and conclusions of law had in that court. It is therefore impossible for this court to determine the legal questions attempted to be urged by counsel for plaintiff in error. This is especially true since there is no bill of exceptions disclosing the evidence upon which the Court of Appeals based its decree. For the reasons stated, the judgment of the MARSHALL, C. J., and JONES, MATTHI AS, DAY, ALLEN, and ROBINSON, JJ., con- cur. DUNCAN v. STATE. (No. 24602.) (Supreme Court of Indiana. March 10, 1925.) 1. Indictment and information 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 compeals. 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 common carrier," held not bad for duplicity. to any pleading, but the cause was there heard de novo upon the pleadings and evi-2. dence. The final decree of the Court of Appeals discloses that while, under plans then existing and under an advertisement for proposals received pursuant thereto, plaintiff may have been entitled to an injunction at the time the suit was brought in the court of common pleas, since that time the let-of indictment. Indictment and information 125 (20)— Prohibited acts mentioned disjunctively in statute may be charged conjunctively in single count. Where statute makes it a crime to do any one of several things mentioned disjunctively, all of which are punished alike, all of such acts may be charged conjunctively in single count For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 3. Intoxicating liquors 236 (62)-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. State, 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 testified that he was a police officer, and that, having seen appellant coming across a vacant lot toward the rear entrance of the Delaware Hotel, in Muncie, Ind., about 11 o'clock on the night when the arrest was A. E. Needham, of Muncie, for appellant. EWBANK, J. This is an appeal from a judgment sentencing appellant to imprisonment for three months and the payment of a fine of $250 for an alleged violation of the Prohibition Law. The verdict found him guilty "as charged in the second count of the affidavit," and appellant moved for a new trial, for the alleged reason that the verdict is not sustained by sufficient evidence. Before the trial appellant had filed a motion to quash this count of the affidavit, and overruling that motion and overruling the motion for a new trial are assigned as er rors. made, he met him in the alley at that enbottles of white mule whisky in as many trance, found that appellant had three pint rest; that he took appellant and the botdifferent pockets, and placed him under arturned the bottles over to the desk sergeant, tles of whisky to the police station, and by whom they were produced at the trial, out objection. He further testified that apand they were introduced in evidence withpellant was the manager of a bowling alley under the Delaware Hotel, but that he did lant had obtained the liquor, whether from not know when, where, or from whom appela carrier or anybody else, or whether he purchased it, or found it, or manufactured it, [1] The second count of the affidavit, as set out in appellant's brief, charged that on, etc., at, etc., appellant "did then and there unlawfully 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 rier in this state, contrary," etc. The only objection to the sufficiency of this affidavit suggested by appellant is that it charged two offenses, and therefore was bad for duplicity. The statute declares that hotel. This evidence fell short of proving that appellant had committed the particular offense with which he was charged and of which he was convicted, of receiving intoxicating liquor from a carrier, and having possession of such liquor received from a carrier. It whol "It shall be unlawful for any person in this state to receive directly or indirectly intoxicat-ly failed to prove that the liquor ever had ing liquors from a common or other carrier or for any person in this state to possess intoxicating liquors, received directly or indirectly from a common or other carrier in the state," etc. Section 83560, Burns' Supp. 1921 (section 15, c. 4, p. 23, Acts 1917). been received by anybody from a carrier, or [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. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ANDREWS v. STATE. (Supreme Court of Indiana. I. Criminal law (146 N.E.) (No. 24780.) March 10, 1925.) 264-What "arraignment" consists of stated. An "arraignment" consists of informing a defendant of the charge against him by reading the indictment or affidavit to him by the clerk of the court, unless defendant waives such reading, after which he must be required to plead to the charge, either in abatement or in bar, unless the court, for cause shown, grants further time to defendant to plead, in view of Burns' Ann. St. 1914, § 2068. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Arraignment.] 2. Criminal law 261(1)—Reading of indictment or affidavit to accused, or waiver thereof, does not dispense with necessity of plea by accused. Appeal from Circuit Court, Knox County; Thos. B. Coulter, Judge. Perry Andrews was convicted of operating a motor vehicle while he was intoxicated, and he appeals. Reversed, with directions to grant new trial. James M. House and Padgett & Clark, all of Vincennes, for appellant. U. S. Lesh, Atty. Gen., for the State. TRAVIS, C. J. This case is a criminal prosecution, brought by indictment, which charges that the appellant operated a motor vehicle while in an intoxicated condition. Acts 1913, c. 300, as amended by Acts 1923, c. 123. The record discloses that appellant waived arraignment and was granted time by the court to plead. Later, without any record that appellant entered a plea, or that he stood mute, and a plea of not guilty being entered by the court, he was put upon trial by a jury, which returned a verdict of guilty. Appellant's motion for a new trial for the reason that the verdict was contrary to law was overruled. Judgment was rendered upon the verdict, from which appellant appeals. Error is assigned upon the overruling of the motion for a new trial. reading of the charge or the waiver there [1] The two steps in the procedure, the of, and the plea, upon which the decision of this appeal rests, are plainly fixed by statute. The arraignment consists of informing the defendant of the charge against him by reading the indictment or affidavit to him by the clerk of the court, unless the defendant waives such reading, after which the defendant must be required to plead to the charge, either in abatement or in bar, unless the court, for cause shown, grant fur Accused may plead to charges against him, ther time to the defendant to plead. Seceither orally or in writing. 6. Criminal law 268-Accused's oral plea must appear by record entry; plea, If written, becomes part of record. Accused's plea, if oral, must appear by record entry, and, if it is written, the plea becomes part of the record. 7. Criminal law 261(1)—Verdict of guilty held contrary to law as being without issue upon which it could be based, where there was no plea to charge. Verdict of guilty for operating a motor vehicle while accused was intoxicated, in violation of Acts 1913, c. 300, as amended by Acts 1923, c. 123, held contrary to law as being without issue on which it could be based, where accused entered no plea to the indictment, and the court did not enter plea of not guilty pursuant to Burns' Ann. St. 1914, § 2072. tion 2068, Burns' 1914. [2, 3] The reading of the indictment or affidavit to the accused, or the waiver thereof by him, does not answer for, take the place of, waive, or excuse the plea by the accused. The arraignment is not complete without the plea by the accused, either voluntarily or by Dict. 239. the court, to the charge. 1 Bouvier's Law [4] The plea forms the issue to be tried, without which there is nothing before the court or jury for trial. This step in the criminal procedure of this state is so firmly laid that the general assembly provided that, when the defendant stands mute or refuses to plead to the charge against him, the court must enter a plea of not guilty for him. Section 2072, Burns' 1914; Weaver v. State, 83 Ind. 289; Bennett v. State, 188 Ind. 380, 123 N. E. 797; Pritchard v. State, 190 Ind. 49, 8. Criminal law 934-That verdict was That verdict was contrary to law held properly presented by motion for new trial. [5, 6] The defendant may plea to the charge against him, either orally or in writing. If the plea be oral, it must appear by a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 146 N.E.-52 record entry, and, if written, the plea becomes a part of the record. [7] It is apparent from the record that, the appellant not having entered a plea to the indictment, and a plea of not guilty in his behalf not having been entered by the court, there was no issue in the case. It must follow that there was nothing to try, or upon which to rest a verdict. [8] It was error to overrule the motion for a new trial, and the verdict was contrary to law. The question is properly presented by the motion for a new trial. Shoffner v. State (1884) 93 Ind. 519; Billings v. State, 107 Ind. 54, 6 N. E. 914, 7 N. E. 763, 57 Am. Rep. 77; Pritchard v. State, 190 Ind. 51, 127 N. E. 545. property, evidence of facts sufficient to create in mind of accused belief that goods were stolen is sufficient. 7. Receiving stolen goods 8 (3)-Unexplained possession not prima facie evidence of guilt. Rule that possession of stolen property, unless explained, is prima facie evidence of possessor's guilt, does not apply to offense of receiving stolen property. 8. Receiving stolen goods 8 (3)—Must be evidence of each essential element of offense. To sustain. conviction of receiving stolen goods, there must be some evidence tending to prove each essential element of offense. Appeal from Superior Court, Elkhart Coun The trial court is ordered to sustain ap- ty; William B. Hile, Judge. pellant's motion for a new trial. Judgment reversed. BOWERS v. STATE. (No. 24776.) (Supreme Court of Indiana. March 10, 1925.) 1. Indictment and information 125 (42)State need not elect between counts charging, respectively, larceny and receiving stolen property. Under Burns' Ann. St. 1914, § 2056, defendant's motion to require state to elect between counts in affidavit charging larceny and receiving stolen property, held properly denied, where they referred to same property. 2. Criminal law 822 (6)-Charges considered together held to state all facts necessary to conviction. Charges on receiving stolen goods, when considered together as they must be, held to state all facts necessary to conviction. 3. Criminal law 822(1) Reversal not granted, unless instructions considered as whole are erroneous. Allen Bowers was convicted of receiving stolen property, and he appeals. Reversed, with instructions. Church & Chester, of Elkhart, for appellant. U. S. Lesh, Atty. Gen., for the State. WILLOUGHBY, J. This is a prosecution by affidavit. The affidavit is in two counts, and in the first count charged that on or about the 22d day of August, 1921, at the county of Elkhart and state of Indiana, appellant did then and there unlawfully and feloniously take, steal, and carry away of the personal goods and chattels of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, two 34x4 size Kelly-Springfield brand automobile tires of the value of $60, and in the second count charges that on or about the 22d day of August, 1921, at the county of Elkhart and state of Indiana, appellant did then and there unlawfully and feloniously buy, conceal, and aid in the concealment of two 34x4 size Kelly-Springfield brand automobile tires, theretofore unlawfully and feloniously stolen by John Doe and Richard Roe, whose true names were unknown. Trial by jury on a plea of not guilty. The jury returned a verdict finding the appellant guilty on the second count of the affidavit, and found the value of the goods to be $52, and the age of the appellant to be 33 years. After a motion for a new trial was overruled and exceptions taken, judgment was rendered on the verdict, fixing the fine in the sum of $100, and that appellant be imprisoned in the Indiana state prison not less than 1 year nor more than 14 years; that he be disfranchised and rendered incapable of holding any office of trust or profit for a period of 2 years, and that he pay and satisfy the costs. Appellant appeals, and assigns as error that the court erred in overruling his motion for a new trial. Appellant claims that the court erred in overruling his motion, made at the conclusion of all the evidence, to require the state to elect upon (146 N.E.) which count in the affidavit it desired to vic v. State (Ind. Sup.) 143 N. E. 357; Ewproceed for conviction. bank's Criminal Law, sections 265–268. [2] The appellant claims that the court Section 2269, Burns' 1914, provides that: "Whoever feloniously steals, takes and car-erred in giving instruction No. 12, which is ries, leads or drives away the personal goods as follows: of another, of the value of twenty-five dollars or upwards, is guilty of grand larceny, and, on conviction, shall be imprisoned in the state prison not less than one year nor more than fourteen years, fined not exceeding double the value of the goods stolen, and disfranchised and rendered incapable of holding any office of trust or profit for any determinate period." Section 2273, Burns' 1914, provides that: "Whoever buys, receives, conceals or aids in the concealment of anything of value, which has been stolen, taken by robbers, embezzled, or obtained by false pretense, knowing the same to have been stolen, taken by robbers, embezzled, or obtained by false pretense, shall, if the goods be of the value of twenty-five dollars or more, on conviction, suffer the punishment prescribed for grand larceny, and if the goods be of the value of less than twenty-five dollars shall suffer the punishment prescribed for petit larceny." Section 2056, Burns' 1914, provides that: "An indictment or affidavit for larceny may contain a count for * receiving or concealing the same property, knowing it to have been stolen and the accused may be convicted of either offense, and the court or jury trying the cause may find all or any of the persons accused guilty of any of the offenses charged." "To warrant the conviction of the defendant under the second count of the affidavit, the state must prove by the evidence: First, that the property described in the affidavit or some part of it was stolen; second, that the defendant received the property or some part of it from persons who stole it or from some one acting for or on behalf of such thief; third, that the defendant when he received such property knew that it was stolen property." The objection pointed out to this instruction by the appellant is that it fails to state the degree of proof required before a conviction may be had. Instruction No. 12 is followed by instructions Nos. 13 and 14, which are as follows: "Instruction No. 13. Evidence has been introduced in this cause that the property described in the second count of the affidavit was stolen by persons whose true names are to the affiant unknown, and that such property was by them stolen from the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. "In order to render the offense of receiving stolen goods possible under this count, the goods stolen must retain their stolen character at the time received, if received by the defendant. If the goods were transferred by the thief to a guilty receiver, then such person takes as the receiver and not as the thief, and one receiving the goods from some other source than from the thief would not be guilty of Another provision of statute, section 2121, receiving stolen goods, unless the person from Burns' 1914, provides that: to connect him with the thief. whom the same were received be the agent of the thief, and the defendant knew it and re"In any prosecution for the offense of buy-ceives such goods under such circumstances as ing, receiving, concealing, or aiding in the concealing of any stolen property, it shall not be necessary, on the trial thereof, to prove that the person who stole such property has been convicted." "If the defendant received the goods in question, or any part thereof, from some second party other than the thief and such second party was the agent of the thief and the defendant knew him to be such and that such Another provision of statute, section 2061, goods had been stolen, then such goods would Burns' 1914, provides that: retain their stolen character at the time of necessary elements having been proven, he such receipt by the defendant and all other would be guilty of receiving stolen goods. "Instruction No. 14. Guilty knowledge on the part of the defendant that the goods had been stolen is essential to the constitution of the offense, but it is also true that proof of direct knowledge is not necessary, and that evidence of facts and circumstances sufficient to create in the mind of the accused a belief that the goods were stolen, may amount to guilty knowledge of such fact. Guilty knowledge may be shown by direct proof or by any surrounding facts from which the same can be inferred." These instructions must be considered along with No. 12, and when so considered they fully state all the facts necessary to be proven in order to convict the appellant upon the second count of the affidavit. [1] The court did not err in overruling appellant's motion to require the state to elect upon which count in the affidavit it desired to proceed upon for conviction of the defendant. Section 2056, Burns' 1914; Kennegar v. State, 120 Ind. 176, 21 N. E. 917; Good- [3] This court has frequently held that inman v. State, 141 Ind. 35, 39 N. E. 939; Rok-structions should be considered in their en |