Opinion
No. 30,015.
Filed April 21, 1961.
1. INDICTMENT AND AFFIDAVIT — Criminal Law — Motion To Quash — Following Words of Statute. — An affidavit which substantially follows the words of the statute is sufficient as against a motion to quash on the ground that the facts stated therein do not constitute a public offense. p. 587.
2. CRIMINAL LAW — Constitutional Law — Firearms Act — Carrying Pistol in Vehicle without a License. — Section 10-4736, Burns' 1956 Replacement, Firearms Act, which makes it an offense to carry a pistol in a vehicle without a license, is not in violation of Article 1, § 32, Indiana Constitution. p. 587.
From the Hendricks Circuit Court, Richard J. Groover, Judge.
Fred Stephens, appellee, was charged with carrying a pistol in a vehicle without a license therefor. A motion to quash the affidavit was sustained and judgment entered accordingly. The State of Indiana, appellant, takes this appeal on a reserved question of law.
Trial court committed error.
Edwin K. Steers, Attorney General, Patrick D. Sullivan, Deputy Attorney General, J. Gordon Gibbs, Prosecuting Attorney, and Walter O. Lewis, Deputy Prosecuting Attorney, both of Danville, for appellant.
Fred Stephens, pro se.
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 1. 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 2. 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.