pears that there is no certificate of the clerk, brief contains no point whatever or citation identifying the transcript. There being no of authorities in support of the proposition. reversible error shown in the record, the The argument in support of the proposition judgment is affirmed. of error as presented and appended to the brief is based upon the statement that there is "absolutely no evidence to support the respective findings." The whole evidence, as presented by the bill of exceptions, has been carefully read and considered, and in the opinion of the court is not subject to the charge made against it.

SIMPSON et al. v. STATE. (No. 24787.)

(Supreme Court of Indiana. Oct. 6, 1925.)

I. Criminal law 1130 (5)-Under Supreme Court rules argument appended to brief on alleged errors is not part of brief, which must contain points and authorities without argument.

Argument appended to brief in support of points made concerning alleged errors is not part of brief, under Supreme Court rule No. 24, and, under rule No. 22, cl. 5, the brief itself must contain points and authorities to sustain them without argument.

2. Criminal law 1141 (2)-Appellant must show that evidence does not prove material element of crime charged where finding is objected to as unsupported.

On appeal from conviction on ground that findings are not supported by evidence, duty is on appellant to show that evidence does not prove some material element of crime charged 236(20)—Evidence held sufficient to show transportation of liquor in automobile.

3. Intoxicating liquors

Evidence held sufficient to sustain finding of guilty of transporting liquor in automobile.

[1] The argument appended to the brief in support of the points made concerning the alleged errors is not a part of the brief. Supreme Court rule No. 24. Gwinn v. Hobbs (1917) 72 Ind. App. 439, 118 N. E. 155. The brief itself must contain the points, with authorities to sustain them, without argument. Supreme Court rule No. 22, cl. 5.

[2] It is the duty of an appellant to point out wherein the evidence is insufficient to prove some material element in proof of the crime charged to overthrow the finding because of insufficient evidence. Harito v. State (1923) 193 Ind. 517, 141 N. E. 57.

[3] By appellants' evidence, which is undisputed, they came to the home of one Scott, in the Maxwell closed automobile, which was afterward returned to its owner, who was the wife of appellant Ventres' employer. They

both entered the yard of Scott's premises and passed to the side of the house. While so passing, they saw and heard policemen in the house, and ran through the lot to the alley in the rear, parted, and continued running, even after a shot was fired and they had

Appeal from Criminal Court, Marion Coun- seen the officers chasing them. The officers ty; W. W. Thornton, Judge.

Louis Simpson and Clifford Ventres were convicted of the unlawful and felonious transportation of intoxicating liquor in an automobile, and they appeal. Affirmed. Robinson, Symmes & Melson and Harry Raitano, all of Indianapolis, for appellants. A. L. Gilliom and Edward J. Lennon, Jr., both of Indianapolis, for appellee.

TRAVIS, J, Appellants were prosecuted and convicted for unlawful and felonious transportation of intoxicating liquor in an automobile. Acts 1923, c. 34.

The proposition presented under the error assigned is that the finding of guilty by the court is not sustained by sufficient evidence upon every material element necessary to constitute the commission of the crime. The

gave further evidence that they saw the Maxwell closed automobile drive up to the house of Scott and stop while they were inside making a search, and, when they saw ap pellants walk by the window, one of them went out and saw appellants within 10 feet of them. Appellants ran to the alley and separated. Simpson turned to the left in the alley and removed a gallon jug of whisky from under his clothing and broke the jug on a large stone. The officer picked up parts of the jug with some of the liquor saved, which he testified was whisky. Simpson was arrested some distance up the alley, and Ventres the day following. The evidence is not subject to the broad charge made by appellants in the argument of their counsel.

The evidence is sufficient to sustain the finding of guilty, and is not contrary to law. Judgment affirmed.

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

1. Arrest 71-Criminal law 395-Searches and seizures 7-Liquor discovered and seized without warrant, on arrest of defendants for speeding, held admissible in prosecution for transportation.

Persons lawfully arrested for speeding, which is misdemeanor, may be searched without warrant, and search may extend to automobile and contents of packages in their possession, without violating Const. art. 1, § 11, and liquor thereby discovered is admissible against them, in prosecution for transportation of intoxicating liquors.

2. Intoxicating liquors 236 (20)-Unlawful transportation of liquor proved.

obtained by reason of the search and seizure of the automobile in which they were riding by the deputy sheriffs, without any warrant for the arrest of the defendants, and without any search warrant authorizing the search and seizure of said automobile or the contents thereof, and that the evidence so obtained was not admissible, that there was error in admitting it in the trial, and that the evidence was obtained in violation of the Constitution of the state.

[1] These identical questions were decided by this court in Haverstick v. State, 147 N. E. 625, which cause was No. 24727, and was decided on April 28, 1925. In that cause the court held that persons lawfully arrested for driving an automobile at an unlawful speed, which is a misdemeanor, may be searched without warrant, and the search may extend to an automobile and contents of packages in their possession without violating article 1, § 11, of the state Constitution, and facts thereby discovered as to unlawful transportation of liquor are admissiOliver B. Jameson was convicted of trans-ble in evidence against them. The questions porting intoxicating liquors, and he appeals. Affirmed.

Evidence held to sustain conviction for unlawfully transporting intoxicating liquors.

Appeal from Criminal Court, Marion County; Jas. A. Collins, Judge.

raised by appellant are carefully and fully discussed in the opinion mentioned. That

T. Ernest Maholm, of Indianapolis, for ap- opinion is sustained by many authorities pellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward Franklin White, Deputy Atty. Gen., for the State.

GEMMILL, J. Appellant and another were charged by affidavit with the offense of unlawfully, knowingly, and feloniously transporting intoxicating liquor in an automobile. The affidavit was based on chapter 34 of the Acts of 1923. He was tried by the court without a jury and found guilty. The judgment was that he be fined $100 and costs and be imprisoned for not less than one nor more than two years.

which are cited therein, and we adhere to that decision.

[2] The evidence objected to by appellant was admissible, the evidence of the state was sufficient to sustain the finding of the court as to appellant's guilt and the finding of the court was not contrary to law. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

MANLEY v. STATE.

(Supreme Court of Indiana.

(No. 24836.)

Oct. 9, 1925.)

The only error assigned by appellant is that the court erred in overruling his motion. Intoxicating liquors 139, 143-Possession for a new trial.

of liquor used in maintaining nuisance unlawful, though mere possession, with intent to illegally sell, not unlawful.

for drinking, and used in maintaining the place, place where persons were permitted to resort was a nuisance, and the keeping of it unlawful, under prohibition law (Burns' Ann. St. Supp. 1921, § 8356t; Acts 1917, c. 4, § 20).

The evidence, which is uncontradicted, shows as follows: That two deputy sheriffs of Marion county arrested the appellant and Mere act of possessing intoxicating liquor, one Fowler, who was with him, for the of- though with intent to sell, was not a public of-fense of driving an automobile at an unlaw-fense in June, 1924, but liquor possessed in ful rate of speed in said county. That they were driving at the rate of 40 miles an hour. That, after the arrest of the appellant and the other party, there was a conversation between them and the officers, in which the former stated that they had 35 quarts of whisky in the automobile, and that the officers did not need a key to get into the automobile. That, after said conversation, the officers, who did not have a search warrant, found the whisky in the automobile.

Appellant claims that the court erred in overruling and denying defendants' verified petition to suppress the evidence, which was

2. Common law 11-Intoxicating liquors

17-Legislature has power to change rules of common law, however ancient, as those relating to evidence under prohibition law.

Within constitutional limits, Legislature has power to change rules of common law, however ancient, as done by Burns' Ann. St. Supp. 1921, § 8356c1 (Acts 1917, c. 4, § 29), relating to admissibility of evidence in prosecution under prohibition law.

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

3. Constitutional law 46(2)—Mere asser- were being manufactured, sold, bartered, givtion of invalidity of statute raised no question.en away, and delivered in violation of law, Mere assertion of invalidity of statute, and where persons were permitted to resort without attempt to show conflict with state or for the purpose of drinking intoxicating liqfederal Constitution, treaties, or paramount uors as a beverage, should have kept inacts of Congress, presents no question as to toxicating liquors therein, and used them validity of such act. in maintaining the place, as the affidavit charged and the jury found by their verdict, then any liquor kept and used in maintaining such place would also be a nuisance, and keeping it here would be unlawful; the statute including in the definition of a nui-. sance, the maintenance of which is made punishable as a misdemeanor, "all intoxicating liquor and all property kept in and used Appeal from Circuit Court, Jay County; in maintaining such a place." Section 8356t

4. Intoxicating liquors 236 (9)-Evidence held insufficient to sustain conviction for maintenance of liquor nuisance.

Evidence held insufficient to sustain conviction under Burns' Ann. St. Supp. 1921, 8 8356t (Acts 1917, c, 4, § 20), for maintenance of liquor nuisance.

Roscoe D. Wheat, Judge.

Rex Manley was convicted of violations of prohibition law, and he appeals. Reversed, and new trial granted.

(section 20), supra.

[2,3] Appellant complains of the admission of certain evidence, the introduction of which was expressly authorized by a statute (sec

Todd Whipple and Jacob F. Denney, both tion 8356c1, Burns' Supp. 1921; section 29, of Portland, for appellant.

Arthur L. Gilliom and Edward J. Lennon, Jr., both of Indianapolis, for the State.

which change the rules of the common law, however ancient. Beauchamp v. State, 6 Blackf. 299, 302; Hedderich v. State, 101

c. 4, Acts 1917, p. 29), which he asks the court to declare unconstitutional; but he offers no argument and cites no authority in support of his contention, beyond a mere assertion that "this is a violation of a priPER CURIAM. Appellant was charged, in mary rule of evidence as old as the English the third and fourth counts of an affidavit, law itself." Except as forbidden or controllrespectively, with the offense of maintaining ed by some provision of the state Constitua nuisance, at his dwelling house on June tion, or of the Constitution of the United 6, 1924, in violation of certain provisions States, or laws and treaties made under it, of section 8356t, Burns' Supp. 1921 (section the Legislature has power to enact statutes 20, c. 4, Acts 1917, p. 25), popularly known as the Prohibition Law, and the offense of receiving intoxicating liquors from a carrier on the same date, in violation of section 83560 (section 15) of the same law. He was found guilty only under the third count of the affidavit, which alleged that he had maintained a common nuisance, to wit, a dwelling house and place where intoxicating liquors were then and there manufactured, sold, bartered, given away, and delivered, in violation of the laws of the state, and where persons were permitted to resort for the purpose of drinking said intoxicating liquors as a beverage, and that he kept intoxicating liquors in, and used them in maintaining, said place. Overruling his motion for a new trial is assigned as error.

Ind. 564, 566, 1 N. E. 47, 51 Am. Rep. 76S;
Hovey v. State ex rel., 119 Ind. 395, 399, 21
N. E. 21; Connell v. State (Ind. Sup.) 144

N. E. 882. And the mere assertion that an

act of the Legislature is invalid, without attempting to show wherein it conflicts with the Constitution, state or federal, or with a treaty or paramount act of Congress, presents no question as to the validity of such In re Pittsburgh, etc., R. Co., 147 Ind. 697, 699, 47 N. E. 151. Therefore we must decline to consider, and shall not undertake to pass upon, the constitutional question suggested, but shall treat the statute as being of unchallenged validity.

act.

[1] Appellant asked a series of instructions to the effect that there was no law in [4] There was evidence that near the noon Indiana forbidding a person to have intoxi- hour, on June 6, 1924, certain officers went cating liquors in his dwelling house and home, with a search warrant to appellant's dwelleven though he had them there with the in- ing house, and there found a 3-gallon jug tention of illegally selling them. As applied with half a gallon of intoxicating liquor in to the issues in this case, such instruction it, a 5-gallon tin can with 15 or 20 drops of would have been erroneous, and the court grain alcohol in it, and also 6 other cans of properly refused to give them. The mere the same kind, a one-gallon jug, a 3-gallon act of having possession of intoxicating liq- jar, 3 bottles and a glass, all of which were uor was not a public offense in June, 1924, empty; that the cans were such as alcohol even though the possessor may have intend- and various other things are put in; that a ed to sell in violation of law. Smith v. State witness had "seen a lot of men go there," (Ind. Sup.) 144 N. E. 471. But, if a person but did not count them; that when the offiwho was maintaining in his dwelling house cers entered the house appellant's wife atand home a place where intoxicating liquors i tempted to pour the liquor from the jar into

(149 N.E.)

sault and battery. Judgment of fine and imprisonment was rendered on the verdict. He has appealed from said judgment.

One of the errors assigned is that the court erred in overruling the motion of appellant to quash the affidavit. The affidavit was filed on June 25, 1924, and it alleges that the crime therein charged was committed on or about the 1st day of October, 1924. The state, by the Attorney General, has filed a confession of error herein, part of which is as follows:

a sink, and did pour out a little, but an offi- [ was tried by jury and was convicted of ascer took the jar away from her; that, while this was going on, appellant came into the room and was placed under arrest; that the reputation of appellant's house as to being a place where intoxicating liquor was sold was "bad"; and that, in answer to an expression by one of the officers of surprise that he had liquor about his residence, ap pellant said that if they had come later in the evening it would not have been there. But no evidence was offered that intoxicating liquor was ever manufactured, sold, bartered, given away, or delivered at that place, or that anybody ever resorted there for the purpose of drinking intoxicating liquor as a beverage, or that whatever liquor may have been kept there was kept and used in maintaining a place where any such acts were done, and these were the only acts charged in the third count of the affidavit, on which If a future date is given in an indictment State v. alone appellant was found guilty. There- or affidavit, same is insufficient. fore the evidence was not sufficient to sustain Noland (1867) 29 Ind. 212; Hutchinson v. the verdict, and appellant should have been State (1878) 62 Ind. 556: Murphy v. State granted a new trial. Schacklett v. State (1886) 106 Ind. 96, 5 N. E. 767, 55 Am. Rep. (Ind. Sup.) 145 N. E. 554; Beemer v. State 10 N. E. 289, 18 N. E. 270; Terrell v. State 722; State v. Patterson (1888) 116 Ind. 45, (Ind. Sup.) 147 N. E. 277; Brown v. State (1905) 165 Ind. 443, 75 N. E. 884, 2 L. R. A. (Ind. Sup.) 147 N. E. 137.

Whether or not the evidence would have been sufficient to prove appellant guilty of maintaining a place where intoxicating liquor was kept for sale in violation of law, if he had been properly charged with that offense and found guilty, is a question not before us, upon which we express no opinion.

The judgment is reversed, with directions to grant a new trial.

SHONFIELD v. STATE. (No. 24924.) (Supreme Court of Indiana. Oct. 16, 1925.) Indictment and information 87 (3)-Refusal to quash affidavit, stating commission of offense subsequent to day of filing of affidavit, held reversible error.

Refusal to quash affidavit, stating commission of offense subsequent to day of filing of affidavit, held reversible error, since the giving of a future date on which the offense is committed renders the indictment or affidavit insufficient.

"The court erred in overruling appellant's motion to quash the affidavit, for it appears upon the face thereof that the date laid upon which the offense was alleged to have been committed was subsequent to the date of filing the affidavit."

(N. S.) 251, 112 Am. St. Rep. 244, 6 Ann. Cas. 851; Boos v. State (1914) 181 Ind. 562, 105 N. E. 117; Ewbank's Indiana Criminal Law, § 285.

to sustain appellant's motion to quash the The judgment is reversed, with directions

affidavit.

SIMPSON v. STATE. (No. 24781.) (Supreme Court of Indiana. Oct. 6, 1925.) 1. Criminal law 11-Court may refer to common law for definition of crime not clear under statute.

Where crime is not well defined, courts may refer to common law for definition, notwithstanding presumption under Burns' Ann. St. 1914, $237, that all crimes and misdemeanors are defined and punishment fixed by statute.

2. Indictment and information 91 (2)—Indictment for unlawful transportation not insufficient for failure to use "feloniously" in describing offense.

Indictment, under Acts 1923, c. 34, § 1, for not insufficient for failure to use word "feloniously" in describing offense.

Appeal from Circuit Court, Delaware Coun- unlawfully transporting intoxicating liquor, held ty; Clarence W. Dearth, Judge.

Rudolph Shonfield was convicted of assault and battery, and he appeals. Reversed, with directions.

A. E. Needham, of Muncie, for appellant. A. L. Gilliom and Edward J. Lennon, Jr., both of Indianapolis, for the State.

GEMMILL, J. The appellant was charged by affidavit with the crime of rape upon a female child under the age of consent. He

3. Criminal law 951(1)—Motion for new trial, after motion in arrest of judgment, improper.

filed and disposed of, motion for new trial on After motion to arrest judgment has been grounds known to exist at time of motion in arrest cannot properly be made.

Appeal from Circuit Court, Fountain County; O. B. Ratcliff, Judge.

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