State v. Stephens

174 N.E.2d 51, 241 Ind. 586, 1961 Ind. LEXIS 167

• Court: Indiana Supreme Court
• Decided: April 21, 1961
• Docket: No. 30,015
• Status: Published

Opinion

Bobbitt, C. J.

Appellee was charged by affidavit under Acts 1935, ch. 63, §3, p. 159, being §10-4736, Burns’ 1956 Replacement, with carrying a pistol in a vehicle without a license therefor. A motion to quash the affidavit was sustained, and the trial court being of the opinion that the objection to the affidavit could not be “avoided by a new affidavit” discharged and released the defendant-appellee herein.

Appellee has filed no brief.

We concur with appellant that the affidavit substantially follows the words of the statute and is, therefore, sufficient as against a motion to quash on the ground that the facts stated therein do not constitute a public offense. Taylor v. State (1957), 236 Ind. 415, 418, 140 N. E. 2d 104; Nicholas v. State (1960), 240 Ind. 463, 165 N. E. 2d 149.

The only other ground alleged in the motion to quash the affidavit is that the statute which makes it an offense to carry a pistol in a vehicle without a license is in violation of Article 1, §32, of the Constitution of Indiana.

Section 10-4736, supra, of the Firearms Act was recently held not to be in violation of Article 1, §32, supra, in Matthews v. State (1958), 237 Ind. 677, 686, 148 N. E. 2d 334, and since the reasons for so holding are stated in the opinion in that case, we see no reason to repeat them here.

The trial court was bound by the decision in Matthews v. State, supra, and, therefore, erred in sustaining the motion to quash the affidavit.

Landis, Achor and Arterburn, JJ., concur. Jackson, J., concurs in result.

Note. — Reported in 174 N. E. 2d 51.