Hamilton v. State
| Decision Date | 21 December 1898 |
| Docket Number | 2,473 |
| Citation | 52 N.E. 419,22 Ind.App. 479 |
| Parties | HAMILTON v. THE STATE |
| Court | Indiana Appellate Court |
Rehearing denied June 8, 1899.
From the Randolph Circuit Court.
Affirmed.
J. S Engle and W. G. Parry, for appellant.
W. L Taylor, Attorney-General, Merrill Moores and A. E. Dickey, for State.
In 1889 the legislature enacted the following law: "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 or [of] more than twenty-five hundred pounds, and any person violating the provisions of this act shall be fined not less than five dollars, nor more than fifty dollars, for each load so hauled." Section 2047 Burns 1894. Appellant was indicted for a violation of this statute, which indictment was in two counts. In the first count it is charged, "That one Franklin Hamilton, late of said county, on the 27th day of February, 1896, at said county and State aforesaid, did then and there unlawfully haul in a wagon, then and there having broad tires, to wit, three inches, a load of more than twenty-five hundred pounds weight, over and upon a certain gravel road then and there situate, and running from the city of Winchester to the city of Union City, known as the Winchester and Union City gravel road, at a time when said road was then and there thawing through, and by reason of wet weather was then and there in a condition to be cut up and injured by heavy hauling, contrary," etc. The second count is substantially the same, except that the date is left blank, and it is charged that appellant hauled a load of more than twenty hundred pounds in a narrow tired wagon, to wit, the tire being two and one-half inches. Appellant moved to quash each count of the indictment, which motion was overruled. Appellant entered a plea of not guilty, and, on trial by jury, he was found guilty. Appellant's motion for a new trial was overruled, and judgment pronounced on the verdict. He has assigned as error: (1) That the court erred in overruling his motion to quash each count of the indictment; (2) that the court erred in overruling the motion to quash the first count of the indictment; (3) the court erred in overruling the motion to quash the second count of the indictment; (4) the court erred in overruling the motion for a new trial.
As the first, second, and third specifications in the assignment of errors present the same question, we will consider them together. It appears from the record that the wagon in question was a wagon constructed for hauling oil, and for a description of it, which seems to be fair, accurate, and full, we quote from appellant's brief:
Counsel for appellant insist that the motion to quash should have been sustained for the reason that it does not show that the indictment was indorsed "A true bill," or that it was signed by the foreman of the grand jury. If the indictment failed to show this, the motion to quash would have been well taken. Strange v. State, 110 Ind. 354, 11 N.E. 357, and authorities there cited; State v. Buntin, 123 Ind. 124, 23 N.E. 1140. But, unfortunately for appellant's insistence, the record, as it comes to us, does show that the indictment is properly indorsed, as required by statute, as follows: The indictment also bears the signature of the prosecuting attorney, and on the back thereof is indorsed the names of the State's witnesses.
Another objection urged to the indictment is that the language used is not sufficient to charge a crime within the language and meaning of the statute, because the words "cut up," as used in the statute, are omitted. In this also appellant is in error, for the indictment does not omit said words, for it is charged that the road was "in a condition to be cut up and injured by heavy hauling." The indictment in its charging the crime is in the identical language of the statute, and it is not subject to the objections urged. It is fair to appellant's counsel to say that, since their brief was filed, a writ of certiorari was petitioned for by the State, and granted, whereby the record was amended to show that the indictment contained the words "cut up," which appear to have been omitted from the transcript as originally filed, and also the record has been corrected so as to show the indorsements on the indictment. Each count of the indictment was good, and the court did not err in overruling the motion to quash.
In his motion for a new trial, appellant assigned twenty specific reasons therefor, but they may all be properly grouped and classified under four subdivisions or heads: (1) As to the admission and rejection of evidence; (2) alleged error in refusing and giving certain instructions; (3) the verdict is contrary to law; (4) the verdict is contrary to the evidence.
It is the theory of appellant that the tank which has been above described was a part of the wagon, and not a part of the load, and, if it was a part of the wagon, and the oil in it weighed less than the amount fixed by statute, then there is no violation of the statute, and could not be a conviction. As the question is of controlling importance in the case, we will now consider it for the purpose of determining whether or not the tank was a part of the wagon, under the facts, and within the meaning of the statute. This question settled will make easier the solution of other questions presented and discussed. Counsel for appellant say that in the court below counsel for the State conceded that if the tank was a part of the wagon, and not a part of the load, there would be no violation of the statute, and could not be a conviction. In considering this question, it is proper for us to look to and ascertain, if we can, the intention and object of the legislature in passing the law upon which the prosecution rests. Courts take judicial knowledge of the laws of the State, and hence we know that by virtue of such laws certain authorities are empowered to construct free gravel roads. We know, by the common history of the State, and by common experience and observation, that many hundreds of miles of such roads have been constructed. The construction of such roads have proved a great burden to those whose lands have been assessed for their construction, and an additional burden is imposed on the public to maintain them. It follows that such roads should be protected and preserved, in the interest and for the convenience of the public, by the best means possible. At certain seasons of the year, when the frost is leaving the earth, the roads are "thawing" through, or in extreme wet whether they are "in a condition to be cut up and injured by heavy hauling," and it was to protect them from such injury that the statute was passed. To state it differently, it was the intention of the legislature, in passing the law, to protect the roads from injurious burdens by hauling over them exceeding in weight, by the load, the amount fixed by law. It certainly was not intended that one class of vehicles should be at liberty to pass over the roads, although the burdens to them would be greater than that defined by the statute, while others carrying like burdens would be prohibited. So the only reasonable conclusion, based upon an intelligent and rational construction of the statute, is to hold that the legislature intended to protect the highway, to which the statute applies, from the injury resulting from its violations. Our Supreme Court has laid down a wholesome and correct rule for the construction of statutes, as follows: ...
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