Johnson v. State

• Decision Date: 24 January 1888
• Parties: Johnson v. State.
• Court: Indiana Supreme Court

113 Ind. 143

15 N.E. 215

Johnson

v.State.

Supreme Court of Indiana.

January 24, 1888.

Appeal from circuit court, Knox county; George A. Bicknell, Judge.

Geo. G. Reily, for appellant. J. C. Adams, B. M. Willoughby, and L. T. Michener, Atty. Gen., for appellee.

Howk, J.

In this case, the appellant, Johnson, was indicted, tried by the court, and found guilty of the public offense which is defined and its punishment prescribed in and by the provisions of sections 1 and 3 of an act of the general assembly of this state, entitled “An act to regulate the rental allowed for the use of telephones, and fixing a penalty for its violation,” approved April 13, 1885. Acts 1885, pp. 227, 228. Over appellant's motion for a new trial, the court rendered judgment against him for the fine assessed and the costs of prosecution. From such judgment defendant has appealed to this court, and has here assigned errors which call in question the overruling- First, of his motion to quash the indictment; and, second, of his motion for a new trial.

The indictment in this case charged that the defendant, “Lenson Johnson, on the first day of September, 1887, at said county of Knox and state of Indiana, was then and there, and now is, the proprietor, controller, and operator of a telephone line in the city of Vincennes, in the county of Knox and state of Indiana; that, as such proprietor, controller, and operator of said telephone line, he, the said Lenson Johnson, rented to one Lute Wile, of said city, for and during the month of August, 1887, one telephone, and only one, connected to and with said telephone line; that at said county of Knox, in the state of Indiana, on the first day of September, 1887, he, the said Lenson Johnson, did then and there unlawfully charge and collect from said Lute Wile for the use of said telephone, for and during the month of August, 1887, the sum of one dollar in excess of the rate fixed by law for the use of said telephone for one month, to-wit, that said Lenson Johnson did charge and collect from the said Lute Wile, for the use of said telephone for and during the month of August, 1887, the sum of four dollars, contrary to the form of the statute,” etc.

The question of the sufficiency of the indictment herein, the substance of which we have quoted, is not discussed by appellant's learned counsel in his brief of this cause. The error of the court below, if it were an error, in overruling the motion to quash such indictment, under the settled practice of this court, is hereby waived, and will not be considered. Appellant's counsel “claims thereversal of the judgment, for the reason that the evidence does not tend to support the finding and judgment.” Before considering the question of the sufficiency of the evidence to sustain the finding of the court, we will first set out the sections of the statute which define the public offense, for the alleged commission whereof the defendant was indicted, and prescribe the penalty therefor. In section 1 of the above-entitled act it is enacted “that no individual, company, or corporation, now or hereafter owning, controlling, or operating any telephone line, in operation in this state, shall be allowed to charge, collect, or receive as rental for the use of such telephones a sum exceeding three dollars per month, where one telephone only is rented by one individual, company, or corporation. Where two or more telephones are rented by the same individual, company, or corporation, the rental per month for each telephone so rented shall not exceed two dollars and fifty cents per month.” Section 3 of such act reads as follows: “Any owner, operator, agent, or other person, who shall charge, collect, or receive, for the use of any telephone, any sum in excess of the rates fixed by this act, shall be deemed guilty of a public offense, and on conviction shall be fined in any sum not exceeding twenty-five dollars.”

We may premise that in the carefully considered case of Hockett v. State, 105 Ind. 250, 5 N. E. Rep. 178, we held that the state has the right to prescribe the maximum rental which a telephone company, or any individual, company, or corporation owning, controlling, or operating any telephone line within the state may charge for the use of telephones, and that the above-entitled act of April 13, 1885, is a constitutional and valid law. Hockett v....