Ellwanger v. State
| Decision Date | 08 March 1932 |
| Docket Number | 25,314 |
| Citation | 180 N.E. 287,203 Ind. 307 |
| Parties | Ellwanger v. State of Indiana |
| Court | Indiana Supreme Court |
1. CRIMINAL LAW---Questions Reviewed on Appeal---Limited to Questions of Law Properly Saved in Trial Court.---The settled practice in this state limits the functions of the Supreme Court in an appeal of a criminal case to a review of the rulings of the trial court involving questions of law properly saved below and shown by the record. p. 311.
2. CONSTITUTIONAL LAW---Validity of Statute---Presumed to be Constitutional---Until Declared Otherwise by Competent Tribunal.---A statute will be presumed to be constitutional until declared otherwise by a tribunal having power so to do in a proceeding appropriate for that purpose. p. 311.
3. CRIMINAL LAW---Criminal Offense---Based on Unconstitutional Statute---Validity of Statute must be Assailed in Recognized Manner.---One charged with crime in the violation of a statute claimed to be unconstitutional is not relieved from such charge unless he assails the statute in some recognized manner. p. 311.
4. CRIMINAL LAW---Review of Rulings on Motions to Quash and in Arrest of Judgment.---The ruling on a motion to quash or in arrest of judgment cannot be presented for review on appeal by a motion for a new trial. p. 311.
5. NEW TRIAL---Meaning of Phrase "Contrary to Law"---In Statutes Relating to Motion for New Trial.---The phrase "contrary to law" in statutes in regard to motions for a new trial means contrary to the principles of law applicable to the specific case before the court or jury. p 312.
6. NEW TRIAL---Phrase ---Extension of Meaning Limited.---The phrase "contrary to law" in statutes relating to motions for new trials cannot be extended to include matters not proper to be considered in support of a motion for a new trial on other statutory grounds, nor to embrace any other grounds which are specified in the statute. p. 312.
7. CONSTITUTIONAL LAW---Constitutionality of Statute Defining a Crime---How Presented for Review on Appeal.---The constitutionality of a statute defining a crime is not presented for review on appeal by a motion for a new trial on the ground that the verdict was "contrary to law." p. 312.
8. CONSTITUTIONAL LAW---Meaning of Words used in Constitution---Ordinary Meaning Usually Given.---Ordinarily words used in a constitution or 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. p. 314.
9. INTOXICATING LIQUORS---Eighteenth Amendment---Does not Preclude States from Enacting Enforcement Statutes.---The Eighteenth Amendment does not preclude the individual states from enacting laws designed to enforce the federal Prohibition Law within their respective territorial limits so long as they are obedient to, and concurrent with, the laws of Congress and the amendment. p. 314.
10. INTOXICATING LIQUORS---Enforcement of Eighteenth Amendment---Power of Individual States.---Under the rulings of the United States Supreme Court, the individual states have unlimited power over the subject of enforcement of the Eighteenth Amendment, and may act independently of Congress. p. 314.
11. INTOXICATING LIQUORS---Indiana Prohibition Law---Not in Conflict with Eighteenth Amendment or "Volstead Law."---The Indiana Prohibition Act is not in conflict with the Eighteenth Amendment or the federal Prohibition Act, known as the "Volstead Law." p. 316.
12. COMMERCE---Power of Congress to Regulate---Paramount to That of the States.---The power of Congress to regulate (interstate) commerce is paramount to that of the states. p. 316.
13. COMMERCE---Regulating---State Enactment Prohibiting Use or Sale of Article of Commerce---Invalid because in Conflict with Federal Constitution.---A legislative enactment of a state prohibiting the use or sale or an article lawfully in commerce would be the exercise of a power limited by the federal Constitution exclusively to Congress (8, Art. 1, Constitution, 8 Burns 1926). p. 316.
14. COMMERCE---Regulating---State Legislation that may be Enacted.---Despite the fact that Congress has supreme power to regulate commerce, an individual state may, within its territorial limits, legislate respecting strictly internal commerce so long as the legislation does not interfere with commerce between the people of that state and those of other states. p. 316.
15. INTOXICATING LIQUORS---"Tincture of Ginger"---When Sale is Unlawful.---Under the provisions of the state Prohibition Law (Acts 1925, ch. 48, 2, 2715 Burns 1926), a sale of "tincture of ginger" is unlawful only when it contains a half of one per cent of alcohol by volume and is "reasonably likely or intended to be used as a beverage." p. 317.
16. INTOXICATING LIQUORS---Prohibition Law---Provision Applicable to "Tincture of Ginger"---Does not Interfere with Interstate Commerce.---The Indiana Prohibition Law, in so far as it prohibits the sale of drinks containing a half of one per cent of alcohol by volume, and which are "reasonably likely or intended to be used as a beverage," such as "tincture of ginger," applies only to transactions of strictly internal concern, and contains no restrictions with respect to persons or things affecting commerce, either within or without the state, nor does it place any burden on, or interfere with, the commercial power of the federal government. p. 317.
17. CRIMINAL LAW---Misconduct of Court---In Commenting on Proof that had been Made---Review Precluded by Absence of Exception.---The Supreme Court cannot review alleged misconduct of the trial court in making remarks respecting the proof that has been made where no exception was reserved and the accused took no steps to have the court correct the alleged error. p. 317.
From the Grant Circuit Court; Oren W. Dickey, Special Judge.
Henry Ellwanger was convicted of the unlawful sale of "tincture of ginger," and he appealed.
Affirmed.
Samuel L. Stricler, Allen G. Messick and John A. Kersey, for appellant.
Arthur Gilliom, Attorney-General, and Bernard A. Keltner, Deputy Attorney-General, for the State.
OPINION
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 one per cent of alcohol by volume, well knowing that it was to be used as a beverage. Acts 1925 ch. 48, p. 144, § 4, § 2717 Burns 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, § 8 and Art. VI, 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. at L. 307, title II, § 4, cl. (e); 27 USCA, § 13 (e); Cornelius, Search & Seizure (2d ed.) § 530, subd. 4, cls. (b) and (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 regulations of commerce, it is exclusively under the control of federal officers.
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 (1931), ante 3, 176 N.E. 553; Simmons v. Simmons (1917), 186 Ind. 575, 116 N.E. 49; Polonius v. State (1923), 192 Ind. 664, 138 N.E. 259; Barrows v. State (1903), 161 Ind. 585, 69 N.E. 253; Atlas Securities Co. v. Grove (1922), 79 Ind.App. 144, 137 N.E. 570.
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. § 2325 Burns 1926, cl. 9. 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 (1923), 193 Ind 258, 139 N.E. 670; Felker v. Caldwell (1919), 188 Ind. 364, 123 N.E. 794; State, ex rel., v. Billheimer (1911), 178 Ind. 83, 96 N.E. 801. 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...
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