Long v. State
| Decision Date | 11 October 1910 |
| Docket Number | 21,670 |
| Citation | 92 N.E. 653,175 Ind. 17 |
| Parties | Long v. The State of Indiana |
| Court | Indiana Supreme Court |
Rehearing Denied December 15, 1910.
From Warren Circuit Court; James T. Saunderson, Judge.
Prosecution by The State of Indiana against Edward Long. From a judgment of conviction, defendant appeals.
Affirmed.
E. F McCabe, for appellant.
James Bingham, Attorney-General, W. H. Thompson, A. G. Cavins and E. M. White, for the State.
Appellant was convicted of taking fish from the Wabash river with a seine, in violation of § 2541 Burns 1908, Acts 1905 p 584, § 619; and has assigned error upon the overruling of his motion to quash the affidavit.
Appellee challenges this court's jurisdiction over the appeal, for the reason that the notice of appeal is unsigned. No motion to dismiss has been filed, but on July 29, 1910, appellee filed its brief on the merits. The filing of this brief constituted a full appearance, and waived any question as to the form or sufficiency of the notice of appeal. Schmidt v. Wright (1882), 88 Ind. 56.
This prosecution was directed against appellant and two other persons, and appellant moved to quash the "affidavit filed against himself and others." The Attorney-General suggests that the motion was too broad, and was, on that account, properly overruled. The motion to quash was not made on behalf of others, but was made by appellant alone, and addressed to the affidavit which included in its charge appellant and others. There is no merit in the contention of the Attorney-General.
The motion to quash is based upon the grounds that the statute upon which the prosecution was based is in violation of the second clause of article 4, § 22, of the state Constitution, which prohibits the passage of local laws for the punishment of crimes and misdemeanors, and that it is in violation of article 1, § 23, which declares that "the General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens."
The relevant parts of § 2541, supra, read as follows:
In the case of Gentile v. State (1868), 29 Ind. 409, this court held that a law regulating the taking of fish from lakes and streams within the State, which did not apply to the Ohio and St. Joseph rivers, did not infringe any of the provisions of article 4, § 22, of the Constitution, and if regarded as local, was not invalid or in violation of article 4, § 23. Similar laws have been declared valid in other cases. State v. Boone (1868), 30 Ind. 225; Stuttsman v. State (1877), 57 Ind. 119; State v. Lewis (1893), 134 Ind. 250, 20 L. R. A. 52, 33 N.E. 1024; Gustavel v. State (1899), 153 Ind. 613, 54 N.E. 123.
Appellant's counsel insists that the statute under consideration falls within the inhibition of the second clause of article 4 § 22, of the state Constitution, against the passage of local laws "for the punishment of crimes and misdemeanors," and that this specific objection has never been considered or passed upon by this court. The contention is that the provision declaring it unlawful to seine within one hundred yards of the mouth of any Indiana stream emptying into the Ohio river, or into the Wabash river where it forms the boundary line between Indiana and Illinois, and lawful to seine in said rivers 301 feet from the same points, renders the act local and void under this...
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