An affidavit in five counts was filed against appellant, charging in different counts that at a time and place named he manufactured, received from a carrier and transported in an automobile intoxicating liquor, that he maintained a common nuisance by keeping a place where intoxicating liquor was manufactured, sold, etc., in violation of law, and also (by the fourth count) that he unlawfully sold, bartered, exchanged, gave away, furnished and disposed of intoxicating liquor to persons to the affiant unknown. Being arraigned, he pleaded guilty and was sentenced to pay a fine of $200 and to be imprisoned at the Indiana State Farm for six months, which was less than the maximum penalty for the offense charged in the fourth count of the affidavit, alone (§ 1, ch. 23, Acts 1923 p. 70), and was far less than the minimum penalty for transporting such liquor in an automobile (§ 1, ch. 34, Acts 1923 p. 108). Six days later he filed a verified petition asking *Page 605 that the judgment and his plea of guilty be set aside, and that he be permitted to enter a plea of not guilty and have a jury trial. This petition asserted that he was not guilty of manufacturing intoxicating liquor nor "of transporting intoxicating liquor as defined by the laws of this state," nor of receiving such liquor from a carrier, nor of maintaining or assisting to maintain a common nuisance. But it contained no denial of the charge in the fourth count that appellant had unlawfully sold, bartered, exchanged, given away, furnished and disposed of intoxicating liquor. It alleged that when the plea was entered he was not represented by counsel, that he had little education and did not know the meaning of legal terms, nor know the rights guaranteed by the Constitution, and that he had always before the date of his arrest borne a good reputation, and that by reason of an injury to his head he suffered from periods of depression when he was in great fear of danger to himself and family, and "that at the time of his arrest and by reason thereof he was thrown into great fear and distress of mind, was unable to think and act for his own natural interest," and because of those conditions did not advise with his friends nor procure counsel to advise him before the plea of guilty was entered. Supporting affidavits of his wife and his mother testified to his alleged periods of nervousness and fear, and that he appeared to be suffering in that manner on the morning of the day he was arrested, being the day the offenses charged were alleged to have been committed.
The assertion of the legal conclusion that the defendant "is not guilty of transporting intoxicating liquors as defined by the laws of this state," instead of stating just what acts he 1. did and what he did not do with regard to liquor and an automobile, was insufficient to negative that particular count of the *Page 606 affidavit. Temple v. State, ex rel. (1916), 185 Ind. 139, 146, 113 N.E. 233.
But he was not adjudged guilty of a felony, so that charge requires no further notice.
A motion asking leave to withdraw a plea of guilty is addressed to the sound legal discretion of the trial court, and, in the absence of an affirmative showing that its discretion 2, 3. was abused, overruling such a plea is not error. And if appellant was really guilty of unlawfully selling intoxicating liquor, as his plea of guilty admitted and his petition for leave to withdraw the plea did not deny, it was not necessarily an abuse of discretion to refuse to set aside a judgment which imposed less than the maximum penalty fixed by law for that offense. Carr v. State (1924), 194 Ind. 162, 142 N.E. 378, and authorities cited.
The petition having failed to show sufficient cause for insisting that the plea of guilty be withdrawn, the fact 4. that no affidavits were filed in opposition to it was not material.
The judgment is affirmed.