Boyer v. The State
| Decision Date | 17 January 1908 |
| Docket Number | 21,146 |
| Citation | 83 N.E. 350,169 Ind. 691 |
| Parties | Boyer v. The State |
| Court | Indiana Supreme Court |
From Criminal Court of Marion County (36,385); James A. Pritchard Judge.
Prosecution by the State of Indiana against John Boyer. From a judgment of conviction, defendant appeals.
Affirmed.
Charles B. Clarke, Walter C. Clarke and Clement M. Holderman, for appellant.
James Bingham, Attorney-General, A. G. Cavins, E. M. White, H. M Dowling and Charles Remster, for the State.
Appellant was prosecuted upon an indictment for offering for sale a certain diseased horse, in violation of § 2508 Burns 1908, Acts 1907, p. 100. His motion to quash the indictment was overruled, and upon trial by the court he was found guilty as charged, and his punishment assessed at a fine of $ 200 and imprisonment in the Marion county workhouse for a period of three months. He unsuccessfully moved for a new trial, and judgment was rendered against him upon the finding.
The errors assigned and discussed by his counsel are the insufficiency of the indictment and the insufficiency of the evidence to support the finding.
The statute upon which the prosecution is based, omitting the enacting clause, is as follows: "Whoever shall offer for sale, or exchange for anything of value, any horse or mule, knowing the same to be afflicted with 'glanders,' or any other infectious or contagious disease, or knowing the same to be afflicted with the 'heaves,' or to be 'broken-winded,' or to be what is popularly known as a 'roarer' or a 'cribber,' and shall conceal the existence of such disease from the person to whom he is offering such animal for sale, or with whom he is attempting to effect an exchange thereof, or who shall employ any trick, artifice, drug, or any device of any character whatsoever to conceal the existence of such disease or defect, and shall thereby effect the sale or exchange of such animal to any person who is ignorant of the existence of such disease or defect, and shall by such sale or exchange obtain anything of value, shall on conviction thereof he fined in any sum not exceeding $ 500, to which may be added imprisonment in the county jail or workhouse for a period not exceeding six months." (Our italics.)
The indictment, omitting the formal parts, is as follows: "The grand jurors for the county of Marion and State of Indiana, upon their oaths present that John Boyer on June 15, 1907, at and in the county of Marion and State aforesaid, did then and there unlawfully offer for sale to Hugo Klingstein a certain horse for $ 38 in money, which said horse was then and there diseased in this, to wit, that said horse was then and there broken-winded, he, said John Boyer, then and there well knowing said horse to be diseased as aforesaid, and did then and there conceal the existence of such disease from said Hugo Klingstein, to whom he was then and there offering said diseased horse for sale, and did then and there and thereby effect the sale of said diseased horse to said Hugo Klingstein, he, said Hugo Kingstein, being then and there ignorant of the existence of said disease, and said John Boyer did then and there by such sale unlawfully obtain $ 38 in money of the value of $ 38 of the personal property of said Hugo Klingstein, contrary," etc.
It is urged by appellant's counsel that the indictment is insufficient because the positive facts constituting concealment of the existence of the disease with which the horse in controversy was afflicted are not set out in the indictment. The argument is advanced that the concealment contemplated by the statute involved must be the result of such affirmative or positive facts as are calculated to prevent a discovery of the existence of the disease by the person to whom the horse is offered for sale or exchange. In respect to the question of concealment, counsel seek to have the indictment governed by the rule which obtains in regard to the concealment of the commission of a crime so as to prevent the running of the statute of limitation under § 1666 Burns 1901, § 1597 R. S. 1881, § 1891 Burns 1908, Acts 1905, p. 584, § 24, and in civil cases under § 302 Burns 1908, § 300 R. S. 1881.
The statute under consideration may properly be divided into two parts. The case at bar apparently is based upon the provisions of that part which we have embraced in italics. These provisions declare it to be an offense in case any one offers for sale, or exchange for anything of value, any horse or mule which is afflicted with "glanders" or any other infectious or contagious disease, or which is afflicted with the "heaves," or is "broken-winded," or is what is popularly known as a "roarer" or a "cribber," where the person so offering such animal has knowledge at the time of the existence of such disease or infirmity, but conceals the existence thereof from the person to whom he is offering such animal for sale, or with whom he is attempting to effect an exchange thereof.
Under these provisions it is not necessary, in order to constitute an offense, that a sale or exchange of such animal should be effected. The offense is complete within the meaning of these provisions of the statute, without regard as to whether a sale or exchange of the animal is actually effected. Under that part of the statute not included in our italics, if a horse or mule is afflicted with any of the diseases or infirmities mentioned in or contemplated by the first part of the statute, it is an offense for any person to employ any trick, artifice, drug or any device of any character whatsoever to conceal the existence of such disease or defect, and thereby effect the sale or exchange of such animal to a person who at the time is ignorant of the existence of such disease or defect, and by such sale or exchange obtain anything of value.
The underlying purpose of the statute is (1) to make it a criminal offense, subject to the punishment therein fixed, for a person to offer any horse or mule either for sale or exchange for anything of value, if the animal at the time it is so offered is afflicted with any of the diseases or defects mentioned in or contemplated by the statute, in case the person so offering the animal has at the time knowledge of the existence of the disease or defect in question, but conceals the existence thereof from the person to whom he is offering such animal for sale, or with whom he is attempting to effect an exchange thereof for something of value; (2) to prohibit, in case of such afflicted animal, the employment of any trick, artifice, drug, etc., to conceal the existence of such disease or infirmity and thereby effect the sale or exchange of the animal for value to a person who at the time is ignorant of the existence of the disease or infirmity with which such animal is afflicted.
The word "conceal," as employed in the first part of the statute, calls for an interpretation. The term manifestly is not there used in its primary sense--meaning "to hide," "to cover up," "to withhold from observation," but is used in its secondary sense, which is "to withhold from utterance or declaration," "to keep secret," "to fail to disclose." See the words "conceal" and "concealment" in Standard Dictionary, Webster's International Dictionary, and Century Dictionary. In respect to the interpretation of these terms see, also, 6 Am. and Eng. Ency. Law (2d ed.), 420; 8 Cyc. Law and Proc., 543, 544; 2 Words and Phrases, 1377, title, "Conceal;" Dale County v. Gunter (1871), 46 Ala. 118, 142; Gerry v. Dunham (1869), 57 Me. 334.
It will be observed upon examination that the word "conceal," according to the best lexicographers also signifies "to withhold or to keep secret mental facts from the knowledge of another person, as well as to hide, cover up, or secrete physical objects from sight or observation." The phrase, as employed in this statute, "and shall conceal the existence of such disease from the person to whom he is offering such animal," etc., cannot be said to contemplate any corporeal object to be concealed by the person offering the animal, but evidently means, as the authorities affirm, where the offerer withholds or keeps secret from the person to whom he is making the...
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