Appellant, in the court below, was convicted of an offense defined by § 1, Acts 1923 p. 108. Accordingly, judgment was rendered. Appellant appealed and has assigned as error in this court the overruling of his motion for a new trial, wherein the causes relied on are the refusal of the trial court to give his requested instruction No. 23, and in giving instructions Nos. 1, 2, 16 and 21 upon its own motion.
The evidence is not before us. This being true, it *Page 41 follows that certain well-settled rules, influential in determining questions pertaining to the refusal or to 1, 2. the giving of instructions should be observed. Applying these rules to the case at hand, appellant must not only establish error by the record, but also affirmatively rebut the presumption that the requested instruction was refused because not applicable to the evidence, or that it was covered, or substantially so, by instructions given. Vorhees v. State (1922), 192 Ind. 15, 134 N.E. 855; Kell v. State (1924),194 Ind. 374, 142 N.E. 865; Rokvic v. State (1924), 194 Ind. 450, 143 N.E. 357. Furthermore, this court will not consider instructions given by the court erroneous, if correct under the issues upon any supposable state of facts. McIntosh v. State (1898), 151 Ind. 251, 51 N.E. 354; Schuster v. State (1912),178 Ind. 320, 99 N.E. 422; Kilgore v. Gannon (1916),185 Ind. 682, 114 N.E. 446, L.R.A. 1917E 530.
The affidavit in this case, in substance, charged that appellant, on February 1, 1923, unlawfully transported in his automobile more than one gallon of intoxicating liquor. 3. Appellant, by his instruction refused, sought to have the jury told, in effect, that the transportation of less than a gallon of intoxicating liquor in the pocket of its owner would not be a crime. At the time the instruction was offered, mere possession of intoxicating liquor was not an offense. Hence, it is insisted that possession of less than a gallon of intoxicating liquor for the exclusive use of its owner, whether being transported or not, was lawful. We cannot agree with this contention. The charge, as we have seen, was unlawfully transporting the article forbidden in a certain vehicle, and not mere possession. There was no error in refusing the instruction.
Directing our attention to the instructions given by the court upon its own motion and challenged as being *Page 42 erroneous, it will be observed that Nos. 1 and 16 informed 4. the jury that the material allegations of the affidavit were "the unlawful transportation of intoxicating liquor in an automobile in the county of Warren and State of Indiana" on a date named. Appellant insists that the quantity of liquor mentioned in the affidavit was a matter of description in charging the offense, and must be proved precisely as charged. Citing, Sharley v. State (1876), 54 Ind. 168; Hart v.State (1877), 55 Ind. 599; Rooker v. State (1878),65 Ind. 86; Dennis v. State (1883), 91 Ind. 291. It does not affirmatively appear from the instructions given that the quantity of liquor transported was less than that stated in the affidavit, unless we may infer from the instructions that a less quantity was proved because the court misstated the language of the affidavit by omitting the words "more than a gallon." However this may be, and conceding that the cases cited affirm the doctrine that matters of description in criminal pleadings, although unnecessarily alleged, must be proved as declared, still, in the instant case, the gravamen of the offense charged was the unlawful transportation of intoxicating liquor in an automobile. In our opinion, the quantity of liquor transported is not descriptive of the liquor or of the method of transporting it. Had the affidavit described the liquor so transported as "gin," "whisky," "rum," "alcohol," or otherwise characterized it, then the instruction, by failing to confine the state to proof of the liquor according to the description set forth in the affidavit, would have been erroneous. In our view of this case, the words "more than a gallon" found in the affidavit were surplusage, and if so, the state was not required to prove them.
Furthermore, instruction No. 1 contained a copy of that part of the statute defining the crime with which *Page 43 appellant was charged, and instruction No. 2 quoted to 5, 6. the jury that part of § 1, Acts 1923 p. 70, defining the offense therein made a misdemeanor and the punishment therein provided. By instruction No. 21, the jury was told that it might find appellant guilty of the offense defined in either of the statutes to which its attention had been called, and then explained the three forms of verdict which were furnished it. These forms of verdict were appropriate in case appellant was found guilty under either of the above named statutes, or in case he was found not guilty. The fact that the jury was permitted by two of these instructions to find appellant guilty of an offense carrying a less penalty than that with which he was charged by the affidavit, will not be regarded as harmful to him, since it appears that the jury was not influenced by them. 17 C.J. 345, § 3700.
It must not be inferred from the conclusion just reached that we are inclined to the opinion that the affidavit at bar charged an offense consisting of different degrees, nor do we mean to hold that the instruction relative to the statute making it a misdemeanor to transport intoxicating liquor, regardless of the means used, was a proper instruction in the instant case. What we do hold is, that the giving of the instructions last considered, in view of the finding of the jury, is not an error entitling appellant to a reversal of the judgment.
We find no reversible error in the record.
Judgment affirmed.