King v. State

• Decision Date: 09 November 1916
• Docket Number: 23,020
• Citation: 114 N.E. 34,185 Ind. 312
• Parties: King v. State of Indiana
• Court: Indiana Supreme Court

114 N.E. 34

185 Ind. 312

King v. State of Indiana

No. 23,020

Supreme Court of Indiana

November 9, 1916

From Marion Criminal Court (45,134); James A. Collins, Judge.

Prosecution by the State of Indiana against Lorenzo D. King. From a judgment of conviction, the defendant appeals.

Affirmed.

William N. Harding and Alfred R. Hovey, for appellant.

Evan B Stotsenburg, Attorney-General, Omer S. Jackson and Wilbur T Gruber, for the State.

OPINION

Spencer, J.

Appellant, a retail druggist, was tried and convicted on an indictment which charges him with an illegal sale of cocaine. He has appealed from the judgment of conviction and alleges, first, that the trial court erred in overruling his motion to quash said indictment "for the reason that the same does not state facts sufficient to constitute a public offense under the law." The offense charged is that appellant, at a time and place fixed, unlawfully sold to one Myrtle Ward "cocaine, and derivatives, salts and compounds of cocaine." The contention of appellant is that under § 2494a Burns 1914, Acts 1913 p. 306, an indictment, to be good as against a motion to quash, must distinguish between "cocaine alpha and beta cocaine." The statute in question was first enacted by the general assembly of 1911 (Acts 1911 p. 45), and then made it unlawful "for any druggist or other person to retail, sell, or barter or give away any cocaine, alpha or beta eucaine, or any salt or any compound, or derivative of any of the foregoing substances," etc. In 1913, the act was amended so as to include within its scope certain other drugs and to regulate further the sale of all such drugs (Acts 1913 p. 306, supra), and, as so amended, it contains an error in punctuation which has been carried into the compiled statutes. Such an error, however, may not prevent a proper construction of the act in which it occurs. Collins v. State (1906), 38 Ind.App. 625, 628, 78 N.E. 851; Maley v. Clark (1903), 33 Ind.App. 149, 151, 70 N.E. 1005; Albright v. Payne (1885), 43 Ohio St. 8, 13, 1 N.E. 16. There is no such drug as "cocaine alpha", but the distinction which the statute draws in fact is between cocaine and different grades of the chemical compound known as eucaine. The offense here charged is an illegal sale of cocaine, and the indictment properly follows the language of the act in question.

Objection is next made to certain instructions given by the trial court to the jury. It does not appear, however, from the bill of exceptions containing these instructions, whether it includes all of the instructions given, and it is therefore incomplete. As said in State v. Winstandley (1898), 151 Ind. 495, 496, 51 N.E. 1054: "When, in a criminal case, it is not affirmatively shown by the bill of exceptions that it contains all the instructions given by the court to the jury, this court must presume that such bill of exceptions does not contain all the instructions given. Cooper v. State, 120 Ind. 377, 383, 384, 22 N.E. 320. In such case the presumption is that the substance of the instructions asked was embraced in the instructions given by the court which are not contained in the bill of exceptions, and that, if any instructions given by the...