Russell v. The State

• Decision Date: 24 November 1903
• Docket Number: 20,131
• Citation: Russell v. The State, 68 N.E. 1019, 161 Ind. 481 (Ind. 1903)
• Parties: Russell et al. v. The State
• Court: Indiana Supreme Court

68 N.E. 1019

161 Ind. 481

Russell et al. v. The State

No. 20,131

Supreme Court of Indiana

November 24, 1903

From Marion Criminal Court(33,336); Fremont Alford, Judge.

James A. Russell and others were convicted of the offense of maintaining a nuisance, and they appeal.

Transferred to Appellate Court.

W. W Herod, W. P. Herod and H. D. Merrifield, for appellants.

C. W Miller, Attorney-General, C. C. Hadley, W. C. Geake, L. G Rothschild and Frank Hendricks, for State.

OPINION

Gillett, C. J.

Appellants were convicted of the offense of maintaining a nuisance, and they appeal to this court.The transcript was filed and errors assigned May 23, 1903.There is involved in the case a question as to the proper construction of a statute.The question is presented as to the jurisdiction of this court.

Section 7 of the act of March 12, 1901(Acts 1901, p. 565), provides as follows: "No appeal shall hereafter be taken to the Supreme Court or to the Appellate Court in any criminal case of misdemeanor, except as provided in § 8 of this act."Section 8 of said act reads thus: "Every case in which there is in question, and such question is duly presented, either the validity of a franchise, or the validity of an ordinance of a municipal corporation, or the constitutionality of a statute, state or federal, or the proper construction of a statute, or rights guaranteed by the state or federal Constitution, and which case would be otherwise unappearable [unappealable] by virtue of § 6 or § 7, shall be appealable directly to the Supreme Court, for the purpose of presenting such question only."Section 9 of said act provides that no appealable case shall hereafter be taken directly to the Supreme Court unless it falls within one of the nine classes enumerated in said section, and it further provides that "all other appealable cases shall be taken to the Appellate Court."Section 2 of the act of March 9, 1903, which purports to amend §§ 6 and 7 of the act of March 12, 1901, is as follows: "That § 7 of the said above entitled act be amended to read as follows: Section 7.Hereafter the defendant in all criminal cases of misdemeanors shall have the right of appeal to the Supreme or Appellate Courts."Acts 1903, p. 280.

It will be observed that the section last quoted does not specifically provide whether the jurisdiction in a case of this kind shall be in this Court or in the Appellate Court.It is a rule of statutory construction that a section of a statute as amended is to be regarded, as to matters thereafter occurring, as if such section, instead of the section which was blotted out by the amendment, had been a part of the original act.Walsh v. State,ex rel., 142 Ind. 357, 33 L. R. A. 392, 41 N.E. 65;Pomeroy v. Beach,149 Ind. 511, 49 N.E. 370.So regarding the two acts, we find that § 7 of the original act is not a part of said act, and that, as there is no longer any case of misdemeanor which is not appealable, the language of § 8 of said act, which granted the right of appeal in certain classes of misdemeanor, cases that could not be appealed by virtue of § 7, is no longer applicable.Section 1 of the act of 1903, which applies to civil cases, seems to have treated § 8 as in force in so far as appeals in such cases are concerned, but we note the absence of equivalent language in § 2 of the later act.The force of § 8, which is built upon the theory that appeals may be taken in certain of such cases if they can not be appealed by the preceding sections, is destroyed, in so far as § 8 applies to misdemeanor cases, by a new section that...