Leyner v. State

Decision Date23 January 1857
PartiesLeyner v. The State
CourtIndiana Supreme Court

From the Wayne Court of Common Pleas.

The judgment is affirmed with costs.

O. P Morton, C. H. Test and J. M. Wilson, for appellant.

C. H Burchenal and D. C. Chipman, for the State.


Stuart J.

Information for selling liquor in violation of the liquor law of March, 1853. Trial by jury, verdict and judgment for the State, assessing the fine at one cent.

Were it not that the case involves some important questions, which are argued with great care and ability by counsel, we should feel disposed to dispatch it summarily. The errors assigned will be noticed in their order.

1. "The Court erred in refusing to grant a change of venue."

The cause assigned in the affidavit for the change, is the prejudice of the judge. The affidavit was sufficient, and the party entitled to the change, under the statute. 2 R. S. p. 370, s. 76. But the application for a change of venue was made and denied at the June term, 1855. No bill of exceptions was then taken to the decision of the Court. The bill of exceptions in the record was not taken till the October term following. This was too late. The exception must be taken at the time of the decision. 2 R. S. p. 378; Hornberger v. State, 5 Ind. 300; Zehnor v. Beard, ante p. 96.

2. The second error assigned is, that the Court erred in taxing certain costs against the defendant. It is insisted that, under the statute, he was not liable for the costs of more than three witnesses. As the evidence is not in the record, we cannot say that there were more than three witnesses to prove any one material fact. If he meant to contest that point, he should have embodied the evidence in the record. As it is, we must presume in favor of the ruling of the Court below in taxing the costs.

3. "The Court erred in overruling a motion for a new trial."

This error is unavailing for the same reason as the second--that the evidence is not in the record.

4. The Court erred in overruling the motion to quash. This is the chief point in the case. It is not urged that the information or affidavit is deficient in form. But it is insisted that the liquor law of 1853 was repealed when this action was instituted.

The liquor law of 1855 was approved February 16, of that year. It contained a clause repealing all acts inconsistent with its own provisions; and also a clause saving pending suits under former laws. It is insisted that the repealing and saving clauses took effect upon the approval of the act in February, 1855. But this position is clearly untenable. It is true that the thirty-ninth section is in the present tense--that all acts are hereby repealed, and actions now pending are saved (Laws of 1855, pp. 222, 223); but this section must be taken in connection with the forty-second section, which expressly provides that the act shall take effect and be in force from and after the 12th of June next. Id. p. 223. The repealing and saving clauses, therefore, speak from that date and not from the date of the approval.

Hence, this action instituted on the 1st of June, 1855, was not affected by either clause. Nor was it affected by the act of March, 1855; for that repealed only the first and second sections of the act of March, 1853. Id. p. 224. The action is therefore well brought and the motion to quash correctly overruled.

There is a fatal defect in the form of the bill of exceptions which might have been relied upon in brief,...

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