Regadanz v. The State

• Decision Date: 11 December 1908
• Docket Number: 21,259
• Citation: 86 N.E. 449,171 Ind. 387
• Parties: Regadanz v. The State of Indiana
• Court: Indiana Supreme Court

86 N.E. 449

171 Ind. 387

Regadanz v. The State of Indiana

No. 21,259

Supreme Court of Indiana

December 11, 1908

From Huntington Circuit Court; Samuel E. Cook, Judge.

Prosecution by The State of Indiana against Charles Regadanz. From a judgment of conviction, defendant appeals.

Reversed.

J. B Kenner and Summer Kenner, for appellant.

James Bingham, Attorney-General, George M. Eberhardt, Prosecuting Attorney, Alexander G. Cavins, Edward M. White and William H Thompson, for the State.

OPINION

Gillett, J.

Omitting its formal parts, the affidavit herein, punctuated as it appears in the record, is as follows: "That Charles Regadanz on the 23d day of March, A. D. 1907, at and in said county aforesaid, was then and there unlawfully found in possession of intoxicating liquors, which intoxicating liquors were kept for the purpose of being sold by said Charles Regadanz, he, said Charles Regadanz, not then and there having a license to sell intoxicating liquors, in less quantities than five gallons, according to the laws of such State, contrary," etc. After unsuccessfully moving to quash, appellant entered his plea of not guilty, and the result of the trial was a verdict and judgment in favor of the State. The judgment was rendered February 15, 1908, and on the same day appellant's motion for a new trial was overruled. Five days later the prosecuting attorney filed a petition praying "that the intoxicating liquors in the above-entitled cause [The State of Indiana v. Charles Regadanz], in the possession of the sheriff, be by this court ordered destroyed according to section fourteen of the blind tiger law." (Acts 1907, p. 27, § 8350 Burns 1908.) The petition was sustained, whereupon a judgment for the destruction of the property followed. The second and fourth assignments of error call for a review of the action of the court in overruling the motion to quash and in ordering the destruction of the liquors.

A number of questions are raised by appellant's counsel as to the constitutionality of the act of February 13, 1907 (Acts 1907, p. 27, § 8337 et seq. Burns 1908), commonly known as the blind tiger law, and the question is also raised whether said act was repealed by the act of March 16, 1907 (Acts 1907, p. 689, § 8351 et seq. Burns 1908); but as section one of each of said acts defines, in the same language, the offense sought to be charged, it is unnecessary, for the purpose of disposing of the affidavit, to consider the questions thus raised. In section one of said acts the following language is found: "Any person who shall keep, run or operate a place where intoxicating liquors are sold, bartered or given away in violation of the laws of the State, or any person who shall be found in possession of such liquors for such purpose shall be deemed guilty of a misdemeanor, and upon conviction shall be fined," etc.

Under the language just quoted we have no doubt that either of the offenses defined may be charged in the language of the statute, excepting only that the matters mentioned disjunctively should be charged conjunctively. Donovan v. State (1908), 170 Ind. 123, 83 N.E. 744; Yazel v. State (1908), 170 Ind. 535, 84 N.E. 972. As it is held in the cases just cited, it is not necessary to negative the provisos and limitations which are found in the statute; but the objection to the affidavit in question is that, if we eliminate the word "unlawfully," there is nothing to show that appellant's possession of the intoxicating liquors was for the purpose of selling, bartering or giving them away in violation of the laws of the State. The particular kind of a violation which the pleader sought to charge that appellant purposed was to sell without a license, and, having failed by averment to show that appellant was without a license which would authorize him to sell, the charge was insufficient. In other words, since the pleader saw fit to predicate the charge on the want of a license, he was at least bound to go far enough to show that the purposed sale would have been in violation of a license requirement. State v. Pitzer (1880), 23 Kan. 250; State v. Sommers (1830), 3 Vt. 156; 22 Cyc., 347. The word "unlawfully" was not sufficient for this purpose, for while it was a proper word to use in introducing the charge, yet, having departed from the language of the statute, the pleader was bound to show the commission of a crime by the averment of substantive facts. Terre Haute Brewing Co. v. State (1907), 169 Ind. 242, 82 N.E. 81; Commonwealth v. Crossley (1895), 162 Mass. 515, 39 N.E. 278. The sufficiency of a criminal charge must be judged according to the force of its general scope and structure. Terre Haute Brewing Co. v. State, supra.

It may be, as the Attorney-General argues, that there is no such thing as a license issued under the laws of the State under which sales are confined to quantities of less than five gallons, yet the pleader evidently thought that there was, while the fact might have been that appellant was a licensed druggist, and as such was entitled to sell under the provisions of §§ 8351, 8352 Burns 1908, Acts 1907, p. 689.

It is, however, contended by the Attorney-General that we should indulge in a process of transposition, and read the affidavit as though the latter part thereof charged that the "intoxicating liquors were kept for the purpose of being sold by said Charles Regadanz in a less quantity than five gallons, he, said Charles Regadanz, not then and there having a license to sell intoxicating liquors according to the laws of said State." As the affidavit is actually constructed, the phrase "according to the laws of the State" is descriptive of a license to sell in a less quantity than five gallons, while under the proposed substitution the affidavit would deny that the defendant had any license.

The theory suggested, however, is without practical value. It is true that ungrammatical, or awkwardly constructed, sentences will not vitiate where the meaning is plain (Ellis v. State [1895], 141 Ind. 357, 40 N.E. 801), yet our criminal code provides that an indictment or information must contain "a statement of the facts constituting the offense in plain and concise language" (§ 2040 Burns 1908, Acts 1905, p. 584, § 169), and it is a rule of pleading, both criminal and civil, that as to matters of substance it is not allowable to cast upon the opposite party the burden of correctly interpreting doubtful or uncertain allegations. To avoid this, all substantial doubts, on seasonable attack, are to be resolved against the pleader. Walker v State (1864), 23 Ind. 61; State v. Locke (1871), 35 Ind. 419; State, ex rel., v. Casteel (1887), 110 Ind. 174, 11 N.E. 219; Littell v....