Blomberg v. State

Harvey, J. — This is a prosecution of appellant for a violation of the prohibitory law of Indiana. Acts 1917 p. 15 et seq., §8356a et seq. Burns’ Supp. 1918. The prosecution was instituted in the city court of Indianapolis, where appellant was convicted. He appealed to the criminal court of Marion county, where he was tried de novo and again convicted. From the judgment- of conviction, this appeal is brought. The prosecution was based upon an affidavit in five counts. A motion to quash the affidavit and each of the counts thereof was filed by defendant, the reasons and causes for quashing being that the facts stated in said affidavit, and in each count thereof, do not constitute a public offense. Said motion was sustained as to the first and fifth counts, and overruled as to the second, third and fourth. Upon a plea of not guilty, and a plea of former acquittal of the matters charged in counts 2 and 8, the cause was tried by the court without a jury, and the court found that appellant was not guilty as charged in counts 2 and 3, but that he was guilty as charged in the fourth count, and judgment was entered to the effect that appellant be imprisoned in the county jail for ten days and fined in the sum of fifty dollars. The fourth count was as follows: “Count 4. And [621] affiant aforesaid upon his oath aforesaid says that Herman Blomberg on the 13th day of April, 1918, at and in the county and city aforesaid, did then and there unlawfully fail to remove and cause to be removed, certain intoxicating liquors, to wit: Whiskey, gin, wine and beer then and there in his possession, from this state, within ten days after the second day of April, 1918; that -the said defendant was not then and there a licensed pharmacist, wholesale druggist,- manufacturing chemist, nor was he then and there in possession of said liquors for or in behalf of a public hospital, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Indiana.” This count does not charge a public offense. The statute does not provide any penalty for failure to remove, as is charged in said count. Ward v. State (1919), ante 606, 125 N. E. 397. The motion to quash' the fourth count of said affidavit should have been sustained. The judgment of the court below is reversed, with instructions to sustain-said motion. Note. — Reported in 125 N. E. 399.