Marks v. State

• Decision Date: 17 March 1942
• Docket Number: 27593.
• Citation: 40 N.E.2d 108,220 Ind. 9
• Parties: MARKS et al. v. STATE.
• Court: Indiana Supreme Court

40 N.E.2d 108

220 Ind. 9

MARKS et al. v. STATE.

No. 27593.

Supreme Court of Indiana

March 17, 1942

Appeal from Elkhart Circuit Court; Clyde C. Carlin, Special judge.

H L. Crumpacker, of Michigan City, Robert H Moore, of Gary, Floyd Jellison, of South Bend, Milton Fagan of Gary, and George F. Stevens, of Plymouth, for appellant.

George N. Beamer, Atty. Gen., and Glen L. Steckley, Deputy Atty. Gen., for appellee.

FANSLER Judge.

The appellants were tried upon an indictment in two counts and were found guilty upon the first count.

Error is assigned upon the overruling of motions to quash the first count of the indictment upon the ground that the offense is not charged with sufficient certainty. It is contended that the first count is bad for duplicity.

The first count, omitting the formal parts, is as follows: '* * * did then and there unlawfully and feloniously place and deposit cartridges containing dynamite upon and about the premises of the Indiana and Michigan Electric Company in the immediate proximity of a steel tower supporting lines for the transmission of electrical energy which tower was located Southeast of the town of Benton, in said county and state, for the purpose and with the intent then and there to injure the property of the said Indiana and Michigan Electric Company, without the consent of the said Indiana and Michigan Electric Company, by exploding said dynamite at said time and place in such a manner as to injure and destroy the said property. * * *'

Section 10-1904, Burns' Ind.St.1933, section 2969, Baldwin's Ind.St.1934, is as follows: 'Whoever carries concealed, on or about his person, any cartridge, shell or bomb containing dynamite or other nitroexplosive compound (f)or any other than legitimate and lawful use or uses, or attempts to use the same in any manner to the injury of persons or property, or shall place or deposit the same upon or about the premises of another without the consent of such person shall, upon conviction thereof, be imprisoned in the penitentiary not less than two (2) years nor more than fourteen (14) years. (Acts 1889, ch. 140, § 4, p. 279.)'

Section 10-305, Burns' Ind.St.1933, section 2437, Baldwin's Ind.St.1934, is as follows: 'Whoever wilfully and maliciously prepares, places, arranges, sets or distributes, or aids, counsels or procures the preparing, placing, arranging, setting or distributing of any combustible material, explosive substance, instrument, liquid or other substance in or about any house, building or other structure, or any ship, vessel, steamboat or other water-craft, or any lumber, agricultural product, railroadcar, airplane, balloon, electric car, automobile, motor vehicle, wagon or any farming or agricultural implement or machinery, or any building materials, manufactured product or material intended for manufacture, or any property mentioned in or comprehended by any of the foregoing sections of this act, with the intent to set fire to, burn, blow up, or destroy any such property, or have the same set fire to, burned, blown up or destroyed, such property being the property of another; or being insured against loss or damage by fire and such act or acts of preparing, placing, arranging, setting or distributing, or such aiding, counseling or procuring any such act or acts, being done with the intent to prejudice or defraud the insurer, shall be guilty of a felony and shall, upon conviction thereof, be imprisoned in the state prison not less than one (1) nor more than three (3) years. (Acts 1927, ch. 44, § 5, p. 122.)' The statute, of which this latter enactment is a part, contained the following repealing clause: 'All laws and parts of laws in conflict herewith are hereby repealed.' Section 8, p. 126.

The statute of 1889, Acts 1889, ch. 140, § 4, p. 279, declares against (1) carrying concealed on the person any cartridge, shell, or bomb containing dynamite or other nitro-explosive compound for an unlawful purpose; (2) attempting to use the same in any manner to the injury of persons; (3) attempting to use the same in any manner to the injury of property; and (4) placing or disposing of the same upon the premises of another without his consent. The penalty is imprisonment from two to fourteen years.

The statute of 1927, Acts 1927, ch. 44, § 5, pp. 122, 124, declares against preparing, placing, arranging, setting, or distributing any combustible material or explosive substance in or about the property of another, with the intent to set fire to, burn, blow up, or destroy any such property. The penalty is imprisonment from one to three years.

The later statute is broader than the earlier one in that it applies to any combustible material or explosive substance, while the earlier statute applies only to dynamite or other nitro-explosive compound. The later statute is narrower in that it is limited in its effect to cases in which there was an intent to set fire to, burn, blow up, or destroy property. The earlier statute condemns placing the explosive described upon the premises of another without his consent, and regardless of the intention involved, while the later statute prescribes punishment only in case the explosive described is placed upon the premises of another with a specific intention to set fire to, burn, blow up, or destroy the property. The earlier statute declares against attempts to use dynamite or nitro-explosives to the injury of persons. The later statute is not broad enough to cover attempts at personal injury. The earlier statute declares against carrying dynamite concealed for an unlawful purpose or use. The later statute has no such provision.

It is apparent that the later statute in some respects overlaps the former, and that certain acts which would have come within the terms of the early statute are covered by the later statute. Thus, to burn a building is to injure property, and an attempt to use an explosive so as to set fire to, burn, blow up, or destroy a building would come within the earlier statute. One who places dynamite or a nitro-explosive in the building of another, in an attempt to burn it or blow it up, would have been guilty under the earlier statute, but he would also be guilty under the later statute, and the penalty under the later statute is not so great. But suppose a person should place dynamite or a nitro-explosive upon the property of another, without his consent, for the mere purpose of hiding it, and without any intention to set fire to, burn, blow up, or destroy the property. He would be guilty under the earlier statute and subject to imprisonment for not less than two nor more than fourteen years, whereas if he placed it there with intent to destroy property, he would be punishable by one to three years' imprisonment only, and, in such a case, where the evidence is clear that the explosive had been put upon the premises of another without his consent, the defendant might feel impelled to prove that it was placed with the intention to blow up a building in order to limit the penalty to the shorter imprisonment, when, by all rational standards, it would seem that the mere hiding of an explosive upon the premises of another without his consent, and without an intention to harm his property, should merit less punishment than so placing it with a deliberate intent to destroy property.

In Lewis' Sutherland Statutory Construction, a long-recognized and respected authority, it is said (Vol. 1, § 267, pp. 510, 511): 'If two statutes can be read together without contradiction, or repugnancy, or absurdity, or unreasonableness, they should be read together, and both will have effect. It is not enough to justify the inference of repeal that the later law is different; it must be contrary to the prior law. It is not sufficient that the subsequent statute covers some or even all the cases provided for by the former, for it may be merely affirmative, accumulative or auxiliary; there must be positive repugnancy; and even then the old law is repealed by implication only to the extent of the repugnancy. If, by fair and reasonable interpretation, acts which are seemingly incompatible or contradictory may be enforced and made to operate in harmony and without absurdity, both will be upheld, and the later one will not be regarded as repealing the others by construction or intendment. As laws are presumed to be passed with deliberation and with a full knowledge of all existing ones on the same subject, it is but reasonable to conclude that the legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable.' And it is also said (Vol. 2, § 377, p. 725): 'It is always presumed, in regard to a statute, that no absurd or unreasonable result was intended by the legislature.'

'It is presumed that the Legislature does not intend an absurdity, and such a result will be avoided if the terms of the act admit of it by a reasonable construction; an 'absurdity' meaning anything which is so irrational, unnatural, or inconvenient that it cannot be supposed to have been within the intention of men of ordinary intelligence and discretion.' Words and Phrases, Permanent Edition, Vol. 1, p. 177, and cases cited.

Adopting the rule of rationality and ordinary intelligence and discretion, we cannot ascribe to the Legislature an intention to punish the placing of explosives upon the property of another, with intention to destroy the property, with imprisonment of from one to three years only, and an attempt to use an explosive to the injury of property in some lesser degree with a punishment of imprisonment from two to fourteen years; nor can we attribute to the Legislature an intention that one who places an...