Ellwanger v. State , 25314.

• Decision Date: 08 March 1932
• Docket Number: No. 25314.,25314.
• Parties: ELLWANGER v. STATE.
• Court: Indiana Supreme Court

203 Ind. 307

180 N.E. 287

ELLWANGER

v.STATE.

No. 25314.

Supreme Court of Indiana.

March 8, 1932.

Appeal from Grant Circuit Court; O. W. Dickey, Judge.

Henry Ellwanger was convicted of the unlawful sale of liquor, and he appeals.

Affirmed.Stricler & Messick and John A. Kersey, all of Marion, for appellant.

Arthur Gilliom, Atty. Gen., and Bernard A. Keltner, Deputy Atty. Gen., for the State.

MYERS, J.

In the Grant circuit court appellant was charged by affidavit and convicted by a jury of an alleged unlawful sale to Ferris Jay for $3.60 of six two-ounce bottles of tincture of ginger containing more than one-half of 1 per cent. of alcohol by volume, well knowing that it was to be used as a beverage. Acts 1925, c. 48, p. 144, § 4, § 2717, Burns' Ann. St. 1926. There was no motion to quash the affidavit or motion in arrest of judgment.

Appellant's only properly assigned error challenges the action of the court in overruling his motion for a new trial. The causes for a new trial relied upon are: (1) Verdict contrary to law; (2) verdict not sustained by sufficient evidence.

Appellant insists that the verdict was contrary to law for the reason, first, that under our Federal Constitution, art. 1, § 80, and article 6, the statute upon which the affidavit in this case rests is unconstitutional and void, because it prohibits the sale for beverage purposes of an article of commerce so declared by the National Prohibition Act. 41 U. S. Stat. 307, 309, tit. 2, § 4, cl. (e), 27 USCA § 13 (e); Cornelius, Search & Seizure (2d Ed.) § 530, subd. 4, cls. (b), (e). Secondly, because the trial court had no jurisdiction of the alleged offense, for the reason that the article alleged to have been sold for beverage purposes is an article of commerce, and, under the National Prohibition Act and the Regulationsof Commerce, it is exclusively under the control of federal officers.

[1] The two foregoing contentions submitted by counsel for appellant were not brought to the attention of the trial court. It must be kept in mind that this case is here on appeal, and that the settled practice in this jurisdiction limits the functions of this court to a review of the rulings of the trial court involving questions of law properly saved below and shown by the record. Gears v. State (Ind. Sup.) 176 N. E. 553;Simmons v. Simmons, 186 Ind. 575, 116 N. E. 49;Polonius v. State, 192 Ind. 664, 138 N. E. 259;Barrows v. State, 161 Ind. 585, 69 N. E. 253;Atlas Securities Co. v. Grove, 79 Ind. App. 144, 137 N. E. 570.

[2][3] Counsel for appellant insists that the questions he presents are covered by his motion for a new trial-verdict of the jury contrary to law. Section 2325, cl. 9, Burns' Ann. 1926. In this manner he seeks to attack the constitutionality of the statute his client is alleged to have violated. Counsel's proposition involves merely a question of practice. The record at bar discloses a judgment against appellant upon an issue formed by an affidavit and his plea of not guilty. Neither the affidavit nor the statute upon which it was predicated was questioned in the trial court. From anything so far shown, the entire proceedings were regular and the judgment rendered according to law.

In the first place, a statute is presumed to be constitutional, and will be so considered until otherwise declared by a tribunal having power so to do by appropriate procedure for that purpose. Powell v. State, 193 Ind. 258, 139 N. E. 670;Felker v. Caldwell, 188 Ind. 364, 123 N. E. 794;State ex rel. v. Billheimer, 178 Ind. 83, 96 N. E. 801.

[4][5] If it be conceded that an indictment or affidavit based upon an unconstitutional statute fails to state a public offense, still, one would not be relieved from such charge without assailing the statute by some recognized method. An indictment or affidavit purporting to charge a criminal offense is a pleading which may be tested by our statutory motion to quash or by a motion in arrest of judgment (De La Tour v. State, 201 Ind. 14, 165 N. E. 753;Guetling v. State, 199 Ind. 630, 158 N. E. 593;Scott v. State, 176 Ind. 382, 96 N. E. 125), but the rulings thereon cannot be presented as error on appeal by a motion for a new trial (Moore v. State, 199 Ind. 578, 159 N. E. 154;Hunt v. State, 191 Ind. 406, 133 N. E. 8;Bradley v. Onstott, 180 Ind. 687, 103 N. E. 798).

[6][7] Appellant rests his insistence upon the phrase “contrary to law.” This phrase, as used in the statute, we interpret as meaning contrary to the principles of law as applied to the facts or issues which the jury were called upon to try. Bosseker v. Cramer, 18 Ind. 44;Candy, Adm'r, v. Hanmore, 76 Ind. 125, 128;Equitable Acc. Ins. Co. v. Stout, 135 Ind. 444, 457, 33 N. E. 623;Buck v. Buck, 122 Minn. 463, 142 N. W. 729. At most, it cannot be extended to include matters not proper to be considered in support of the motion for a new trial, nor to embrace any of the other distinct and separate grounds of the motion which are specified in the act. The method adopted by appellant to present his alleged constitutional question cannot be approved. Upon the record here submitted, that question is not before us.

[8] Appellant's second insistence cannot be sustained. In the instant case, the gist of the offense was the sale of intoxicating liquor reasonably likely or intended to be used as a beverage, which was denominated in the affidavit “tincture of ginger.” True, by title 2, section 4 of the federal act (27 USCA § 13), certain enumerated articles manufactured and prepared for market according to certain formulas or under certain regulations are not subject to that act. Among the articles mentioned are medicinal preparations, flavoring extracts, and syrups that are “unfit for use as a beverage, or for intoxicating purposes.” Tincture of ginger is a pharmaceutically prepared solution by using diluted alcohol as a solvent on ginger roots. It is a legally authorized article of commerce, and regarded as unfit for use as a beverage. Notwithstanding its marketability, one may offend the federal act by making sales “under circumstances from which the seller might reasonably deduce the intention of the purchaser to use” such article as an intoxicating beverage. Federal Act, Title 2, § 4. In this connection it may be well to call attention to the words “liquor” and “intoxicating liquor,” as defined by the Legislature of this state. Acts 1925, p. 144, § 2 (Burns' Ann. St. 1926, § 2715). “The words ‘liquor’ and ‘intoxicating liquor’ wherever used in this act shall be construed to mean all malt, vinous, or spirituous liquors, containing as much as one-half of one per cent of alcohol by volume, and every other drink, mixture or preparation of like alcoholic content, whether patented or not, reasonably likely or intended to be used as a beverage.” This section of the statute, when read in connection with section 4, it will be noticed, follows closely the language to which we have referred in the federal act. The ultimate object of both of these acts is the enforcement of section 1 of the Eighteenth Amendment.

In United States v. Lanza, 260 U. S. 377, 381, 43 S. Ct. 141, 142, 67 L. Ed. 314, it was said: “Each state, as also Congress, may exercise an independent judgment in selecting and shaping measures to enforce prohibition. *** They may vary in many particulars, including the penalties prescribed, but this is an inseparable incident of independent legislative action in distinct jurisdictions.” And, page 382 of 260 U. S., 43 S. Ct. 141, 142, “Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.”

[9][10] The Eighteenth Amendment to our Federal Constitution purposed to prohibit the use of intoxicating liquor for beverage purposes within the United States and all territory subject to its jurisdiction. In order to obtain that result, by section 2 “the Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.” The principle underlying appellant's insistence is that which is applied when the federal and state governments may legislate upon the same subject, in which case the congressional exercise of power is supreme and the right of the state becomes inactive. Congress (chapter 85, tit. 2, § 4 [27 USCA § 13]) has exercised its power of enforcing section 1 of the amendment. Since article 6, supra, makes the Constitution of the United States and all laws passed by Congress in pursuance thereof the supreme law of the land, it may well be argued that the Constitution and laws of the several states are subordinate to congressional action. The right of the individual states to pass laws directed to the enforcement of section 1, supra, rests upon the meaning intended by the word “concurrent” in section 2. Ordinarily, words in a Constitution or used in framing laws are given their ordinary meaning, unless it affirmatively appears from the entire wording of the instrument that some other meaning was intended. Giving the word “concurrent” the definition of our lexicons and as generally understood, and assuming that Congress had covered the subject, our state enactment, although yielding to article 6, supra, would not necessarily, for those reasons, be void, but it would be inoperative.

While the argument of appellant's counsel is exceedingly persuasive, yet we feel bound by the rulings in the National Prohibition Cases, headed by State of Rhode Island v. Palmer, 253 U. S. 350, 40 S. Ct. 486, 488, 588, 64 L. Ed. 946;Vigliotti v. Commonwealth of Pennsylvania, 258 U. S. 403, 42 S. Ct. 330, 66 L. Ed. 686; and United States v. Lanza, supra. In the National Prohibition Cases the court, without assigning reasons,...