Moeschke v. The State

• Decision Date: 18 February 1896
• Docket Number: 1,993
• Citation: 42 N.E. 1029,14 Ind.App. 393
• Parties: MOESCHKE v. THE STATE
• Court: Indiana Appellate Court

42 N.E. 1029

14 Ind.App. 393

MOESCHKE v. THE STATE

No. 1,993

Court of Appeals of Indiana

February 18, 1896

From the Lake Circuit Court.

Judgment affirmed.

J Kopelke, for appellant.

W. A Ketcham, Attorney-General, M. Moores and W. C. McMahan, for State.

OPINION

REINHARD, J.

The appellant was prosecuted by affidavit and information charging him with killing animals for the purpose of selling the meat thereof for food. A jury trial resulted in a conviction, a fine of $ 500, and imprisonment in the county jail for the period of four months. From the judgment rendered upon this verdict, this appeal is prosecuted.

The first alleged error relates to the sufficiency of the affidavit and information upon motion to quash, and in arrest of judgment.

The charge is, that the appellant, on the 10th day of October, 1895, at the county of Lake, State of Indiana, "did, then and there, unlawfully, knowingly and wrongfully kill, for the purpose of selling for food, certain sick, diseased and injured animals, to-wit, horses, contrary to the form of the statute," etc.

The prosecution is based upon section 2164, R. S. 1894 (section 2070, R. S. 1881), which reads as follows:

"Whoever kills, for the purpose of sale, any sick, diseased or injured animal; or who sells, or has in his possession with intent to sell, the meat of any such sick or injured animal, shall be fined not more than $ 500, nor less than $ 50, to which may be added imprisonment in the county jail not more than six months."

The appellant's learned counsel urges that the charge is defective, because of a failure to state that the meat was to be sold within the State of Indiana. On the face of the statute there is no provision that the meat of the diseased animal must be intended for sale for the purpose of food, although by a decision of the Supreme Court, concurred in by a majority of the judges, it was held that to constitute an offense under this statute, it must be charged and proved that the meat from such animals was intended for food. Schmidt v. State, 78 Ind. 41. This is as far as the decisions in our state go upon the subject of the necessary averments of an information under this statute, and we are not willing to read into the statute still other requirements not contained therein. See Brown v. State, 14 Ind.App. 24, 42 N.E. 244.

Appellant's counsel cites no authority in support of his contention that the charge should embrace a statement that the meat was intended to be sold in this State, but argues that inasmuch as it appears from the original act of which the above section is a part (acts 1881, p. 209, section 161), that the entire statute was designed to punish only offenses against public health and nuisances, which are things usually done wholly within the State, therefore, the section under consideration must be construed to mean similar offenses. Counsel further says:

"The underlying purpose of the act under consideration was to prevent the sale of unwholesome meat for food. The killing of the diseased animals would of itself be an act worthy of commendation; it becomes criminal only when it is done as the first step toward selling the meat for food, and is made a crime only for the purpose of easier detection, punishment and, therefore, prevention. Now, if diseased meat was sold outside of our State, our Legislature could not punish the act. Has it undertaken to punish the preparatory and initiatory step, the killing of diseased animals for the purpose of selling their meat for food, outside of the State? There is nothing in the statute to indicate such a purpose. The ordinary rules of construction exclude it. No act of ours, that I can now recall, indicates any legislative policy in this State to regulate the conduct of its inhabitants with regard to things that they may do outside of the State."

In this view of counsel we are unable to concur. That the statute in...