Cook v. State

• Decision Date: 19 February 1901
• Docket Number: 3,460
• Citation: 59 N.E. 489,26 Ind.App. 278
• Parties: COOK v. THE STATE
• Court: Indiana Appellate Court

59 N.E. 489

26 Ind.App. 278

COOK v. THE STATE

No. 3,460

Court of Appeals of Indiana

February 19, 1901

From the White Circuit Court.

Reversed.

W. V Stuart, E. P. Hammond and D. W. Simms, for appellant.

W. L Taylor, C. C. Hadley and Merrill Moores, for State.

OPINION

BLACK, J.

This was an action commenced before a justice of the peace upon an affidavit based upon the statute of 1889 (Acts 1889, p. 378 § 2047 Burns 1894, § 6600 Horner 1897) providing as follows: "It shall be unlawful for any person to haul over any turnpikes or gravel roads at any time when the same is [are] thawing through, or is [are], by reason of wet weather, in condition to be cut up and injured by heavy hauling, a load on a narrow tired wagon of more than twenty hundred pounds, or on a broad tired wagon of more than twenty-five hundred pounds, and any person violating the provisions of this act shall be fined not less than $ 5 nor more than $ 50 for each load so hauled."

In the affidavit it was charged, that on, etc., at, etc., "one Charles Cook did then and there unlawfully haul over a certain gravel road, then and there situate, known as the Thompson Gravel Road, a load in his wagon, then and there having narrow tires, to wit, two inches in width, a load of more than 2,000 pounds weight, at a time when said road was then and there thawed through and by reason of wet weather was then and there in a condition to be cut up by heavy hauling, contrary," etc. The appellant's motion to quash the affidavit was overruled.

It is claimed on behalf of the appellant that the statute under which he was prosecuted and convicted "is unconstitutional, invalid, and void for uncertainty, because (1) it fails to define the terms 'narrow tired wagon' and 'broad tired wagon'; (2) these terms have no fixed, certain, and definite meaning. It is impossible for the court or jury to say from the terms used in the statute what is a 'narrow tired wagon' or what is a 'broad tired wagon.'"

No particular clause or provision of the Constitution is pointed out or referred to as contravened or antagonized by the statute, and therefore the appellant can not be regarded as having presented a question as to its constitutionality, or as having duly sought to have the statute pronounced unconstitutional.

Counsel refer to § 237 Burns 1894, § 237 Horner 1897, providing: "Crimes and misdemeanors shall be defined, and punishment therefor fixed by statutes of this State and not otherwise." And it is contended that under this section every offense should be so defined and described as to enable not only the court and jury trying the cause, but any person of ordinary intelligence, to understand precisely what is meant. It has been decided many times with reference to the provision last above quoted that the legislature can not thus impose limits or restrictions upon its future action, and that when statutes are inconsistent the latest enactment must be regarded as the law. Wall v. State, 23 Ind. 150; Burk v. State, 27 Ind. 430; State v. Oskins, 28 Ind. 364; Ardery v. State, 56 Ind. 328; State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117.

In State v. Oskins, supra, it was said of a statute providing that any person who shall molest or disturb any meeting, etc., that the words "molest or disturb" have a well defined meaning.

In Ardery v. State, supra, a prosecution for public indecency, it was said that crimes and misdemeanors, in the absence of definitions in the statutes creating them, may be defined by the court. But in performing such duty the court must act judicially.

In Hood v. State, 56 Ind. 263, 26 Am. Rep. 21, a prosecution for living in open and notorious fornication, it was said that crimes need not be defined by the statute, "and, consequently, the court must judicially declare the definition."

It is provided (§ 240 Burns 1894, § 240 Horner 1897) that the construction of all statutes of this State "shall be by the following rules, unless such construction be plainly repugnant to the intent of the legislature or of the context of the same statute: First. Words and phrases shall be taken in their plain, or ordinary and usual sense. But technical words and phrases, having a peculiar and appropriate meaning in law, shall be understood according to their technical import."

In this State we do not have any common-law crimes, and criminal prosecutions can be maintained only for offenses denounced as crimes by statute; but where a word or phrase had a definite meaning in the common law, before the enactment of a statute which employs such word or phrase to designate a crime, as the phrase "public nuisance", the court on construing the statute will apply to such word or phrase its well ascertained meaning at common law. State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117.

The proper construction of a statute must be the work of the court. Gaylor's Appeal, 43 Conn. 82.

In State v. Parker, 43 N.H. 83, it was said that it must appear that if the facts alleged in an indictment are proved as they are stated, without any additional fact or circumstance, there can be no doubt of the illegality of the conduct charged, nor of its criminality. The language of a criminal statute can not be extended beyond its reasonable meaning, and wherever the court entertains a reasonable doubt as to the meaning, the doubt must be resolved in favor of the accused. The court must expound what it finds written, and can not import additional meaning without sufficient indication thereof in the words of the statute with such aids thereto as the established rules of law authorize. In the absence of any other apparent purpose of the legislature, the statute should be read as written and all parts and terms therein should be considered together, with reference to their connections and to the subject to which the statute relates. A general statute enacted by the...