Opinion
6 Div. 131.
December 15, 1931.
Appeal from Circuit Court, Marion County; J. P. Middleton, Special Judge.
Simon Frederick was convicted of public drunkenness, and he appeals.
Affirmed.
Defendant reserved an exception to the following portion of the oral charge:
"There is another thing I forgot there, you must believe beyond a reasonable doubt that it was a public place. I can't tell you whether or not it was a public place. That's for you to say from the evidence."
C. E. Mitchell, of Hamilton, for appellant.
A public road is not a public place as contemplated by the statute. Code 1923, § 3883. But, if it could be said to be such, the court should have so charged the jury, telling them why, in this instance, the road was a public place. The law does not provide that the county solicitor may make a statement of the complaint, and the complaint upon which defendant was tried in the circuit court was therefore void. Code 1923, §§ 5522, 3843.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
A public road is a public place, and it would have been proper to so charge the jury, but the charge as given was beneficial rather than prejudicial to appellant, and there was no error. Code 1923, § 3883. It is proper for the county or deputy solicitor to act for the circuit solicitor. Code 1923, §§ 5522, 5525.
Prosecution for public drunkenness. Code 1923, § 3883.
The case having originated in the county court, it was permissible, on defendant's appeal to the circuit court, for the "complaint," called for by Code 1923, § 3843, to be signed and filed by the "deputy" or "county" solicitor. Code 1923, § 5522. In the absence of anything to the contrary, we assume he acted at the "direction" of the circuit solicitor.
We think it obvious that a "public road" is a "public place," within the purview of Code 1923, § 3883. The fact that the court declined to so declare it, but left the jury free to decide that it was not, was in appellant's favor. Hence this action of the court cannot avail for reversal. Supreme Court Rule 45.
There was substantial evidence that appellant was guilty as charged. Therefore the case was properly submitted to the jury.
We discover nowhere prejudicial error, and the judgment of conviction is affirmed.
Affirmed.