Opinion
No. 25,575.
Filed December 11, 1928. Rehearing denied February 19, 1929.
1. CRIMINAL LAW — Venue of Prosecution — Proof Sufficient. — In a criminal prosecution, testimony that the offense was committed in appellant's house in Black Oak and that appellant was arrested in his house in Black Oak, Lake County, was sufficient to show that the venue of the prosecution was in Lake County. p. 529.
2. CRIMINAL LAW — Finding of Guilty on Two Counts — Judgment on One Only. — Rule Stated. — Where there is a general finding against the defendant on two counts, one of which is sustained by the evidence and the other is not so sustained, a judgment not specifying on which count it is based will be presumed to be based on the count which is sustained by the evidence. p. 529.
3. CRIMINAL LAW — Affidavit Containing Three Counts — Judgment on Two Only — Finding of Guilty on Third — Harmless Error. — In a prosecution by affidavit in three counts, where the court expressly stated that it rendered judgment only on the offenses charged in counts one and two, the appellant could not complain on appeal that a finding of guilty on the third count was not sustained by the evidence, as it would be apparent that he was not harmed by such finding. p. 529.
4. CRIMINAL LAW — Affidavit in Criminal Prosecution — Administration of Oath — By Deputy Prosecutor. — Under § 11834 Burns 1926, an affidavit for a criminal prosecution may be sworn to before a deputy prosecuting attorney, as such deputies are authorized to administer "all oaths that may be found convenient and necessary to be administered in the discharge of their official duties." p. 530.
From Lake Criminal Court; Martin J. Smith, Judge.
Angelo Lencionia was convicted of unlawful possession and sale of intoxicating liquor, and he appeals. Affirmed.
James H. McNeff, for appellant.
Arthur L. Gilliom, Attorney-General, and U.S. Lesh, for the State.
Appellant was prosecuted upon an affidavit in three counts, the first count charging unlawful possession of intoxicating liquor; the second, unlawful selling; and the third, maintaining a nuisance, under §§ 1, 24, ch. 48, Acts 1925, §§ 2717, 2740 Burns 1926. He was tried by the court, which found him guilty as charged, but rendered judgment only on the offenses charged in counts one and two.
The only error assigned is the overruling of appellant's motion for a new trial, in which he alleges that the finding is not sustained by sufficient evidence. Under this assignment appellant contends: (1) That the venue of the action was not proved; (2) that there was no evidence to sustain the charge made in count three, and that therefore a general finding was bad and was not cured by a judgment on counts 1 and 2 only; and (3) that the affidavit was not sworn to before a person authorized to administer oaths.
A deputy sheriff testified that he arrested appellant December 5, 1927, at Black Oak, Lake County, Indiana, and, pursuant to a search warrant, searched his dwelling house, with an 1. annexed room where soft drinks, tobacco and candy were sold, and found four gallons of wine in the house and one gallon of moonshine (whisky) in the garage thirty feet away; and that, after making the search, but before leaving the premises, appellant came there and said he was staying there and that appellant's family was at that time living in the house. That appellant's house is known as "Black Oak Springs," that the Black Oak Spring is in that yard and they sell water there. Another witness testified that on December 3, 1927, in Black Oak, Black Oak Springs, he bought a pint of wine for fifty cents from appellant. This evidence is sufficient to show the venue of the offenses charged to have been in Lake County, Indiana.
A discussion of the question whether there is sufficient evidence to sustain a finding of guilty on the third count of the affidavit which charged the maintenance of a nuisance is 2, 3. unnecessary. The court disregarded this finding in pronouncing its judgment on the findings made on the first and second counts, and there is no judgment based on the third count. Where there is a general finding against a defendant on two counts, one of which is sustained by the evidence and the other is not so sustained, a judgment not specifying upon which count it is based will be presumed to be based on the count which is sustained by evidence, Speybroeck v. State (1927), ante 69, 155 N.E. 817, and where it specifically appears that the judgment was not rendered upon the count which appellant contends was not sustained by the evidence, it is apparent that he has not been harmed by the ruling complained of.
The remaining question, "(3)" above, is not properly presented under the assignment herein and does not appear to have been passed on by the trial court. But, even if properly 4. presented, there is no error, for the signature of the jurat "Thea D. Vance, Deputy Prosecuting Attorney" is sufficient. The statute, § 11834 Burns 1926, provides that: "all prosecuting attorneys and their deputies are hereby authorized and empowered to administer all oaths that may be found convenient and necessary to be administered in the discharge of their official duties," and we have recently held that such a signature is sufficient as an indorsement of the approval of the prosecuting attorney as required by statute. Hamer v. State (1928), ante 403, 163 N.E. 91.
Judgment affirmed.