Palmer v. State

• Decision Date: 20 December 1921
• Docket Number: No. 23771.,23771.
• Citation: 133 N.E. 388,191 Ind. 683
• Court: Indiana Supreme Court
• Parties: PALMER v. STATE.

191 Ind. 683

133 N.E. 388

PALMER

v.STATE.

No. 23771.^*

Supreme Court of Indiana.

Dec. 20, 1921.

Appeal from Circuit Court, Vigo County; Charles L. Pulliam, Judge.

Harry Palmer was convicted of keeping intoxicating liquors with intent to sell, etc., and he appeals. Affirmed.

Adamson & Gallagher, Thomas F. O'Mara, and Clay A. Williams, all of Terre Haute, for appellant.

Ele Stansbury, of Williamsport, and Remster A. Bingham, of Indianapolis, for the State.

EWBANK, C. J.

The third count of the indictment on which appellant was found guilty charged that he unlawfully kept intoxicating liquors with intent to sell, barter, exchange, and give away the same, in violation of the laws of the state of Indiana. Appellant moved to quash this count of the indictment, for the alleged reason, among others, that it did not state facts sufficient to constitute a public offense, which motion was overruled. He filed a motion for a new trial for certain alleged reasons, among which were that the verdict was not sustained by sufficient evidence, and was contrary to law, but this motion also was overruled. He then moved the court to discharge him from custody, which motion also was overruled. He then filed several other motions and written “objections,” each of which was overruled. He duly reserved an exception to each of said rulings of the court, and has assigned each of them as error.

The record discloses that the charge on which appellant was convicted was a charge that the intoxicating liquor was kept with the unlawful intent, as stated, on the 17th day of November, 1918, but that the said motions were made and overruled and the judgment of conviction was rendered on the 31st day of January, 1920, a few days after the Eighteenth Amendment of the Constitution of the United States took effect. National Prohibition Cases, 253 U. S. 350, 384, 40 Sup. Ct. 486, 588, 64 L. Ed. 946. And the only question presented for decision by appellant's brief is whether or not the adoption of the said Eighteenth Amendment operated to repeal or annul the state law forbidding intoxicating liquor to be kept for purposes of sale, barter, exchange, and gift, Acts 1917, c. 4, p. 16, § 4. See Acts 1921, c. 250, p. 736. The first and second sections of that amendment read as follows:

1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territories subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Sec. 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.”

We do not perceive anything in this amendment which can operate to repeal or affect a state statute forbidding traffic in intoxicating liquors and prescribing penalties for its violation. The question has been passed on many times by different courts, and all are unanimously of the same opinion, so far as we have been able to discover. The earlier decisions to that effect reasoned the matter at great length, with copious citations of authorities, and we shall content ourselves with citing the decisions as far as we can, in the order in which they were made. Ex parte Ramsey (U. S. D. C. S. D. Florida) 265 Fed. 950;Commonwealth v. Nickerson, 236 Mass. 281, 128 N. E. 273, 10 A. L. R. 1568;City of Shreveport v. Marx, 148 La. 31, 86 South. 602;Jones v. Hicks, 150 Ga. 657, 104 S. E. 771, 11 A. L. R. 1315;State ex rel. v. District Court, 58 Mont. 684, 194 Pac. 308;State v. Fore, 180 N. C. 744, 105 S. E. 334;Harris v. Superior Court (Cal. App.) 196 Pac. 895;United States v. Holt (U. S. D. C. W. D. North Dak.) 270 Fed. 639;Franklin v. State, 88 Tex. Crim. R. 342, 227 S. W. 486;Ulman v. State (Md.) 113 Atl. 124;Woods v. City of Seattle (U. S. D. C. W. D. Washington) 270 Fed. 315;Allen v. Commonwealth (Va.) 105 S. E. 589;State v. Knosky (W. Va.) 106 S. E. 642; Ex parte Crookshank (U. S. D. C. S. D. California) 269 Fed. 980; Ex parte Finegan (U. S. D. C. N. D. New York) 270 Fed. 665; Ex parte Gilmore (Tex. Cr. R.) 228 S. W. 199;State v. Turner (Wash.) 196 Pac. 638;State v. Hartley (S. C.) 106 S. E. 766;People v. Commissioner, 115 Misc. Rep. 331, 188 N. Y. Supp. 46;People v. Cook, 197 App. Div. 155, 188 N. Y. Supp. 291;State v. Ceriani (Conn.) 113 Atl. 316;Burrows v. Moran (Fla.) 89 South. 111;Wood v. Whitaker (Fla.) 89 South. 118;State v....