Smith v. State
| Decision Date | 24 June 1924 |
| Docket Number | No. 24603.,24603. |
| Parties | SMITH v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Fayette County; E. R. Himelick, Judge.
Cecil Smith was convicted of violating the Prohibition Law, and he appeals. Reversed and remanded with instructions.
Wiles, Springer & Roots and G. Edwin Johnston, all of Connersville, for appellant.
U. S. Lesh, Atty. Gen. (Cronk & Wilde, of Indianapolis, of counsel), for the State.
Appellant was convicted of an alleged offense, that he did on the 9th day of August, 1923, “unlawfully keep intoxicating liquor, to wit, two gallons of ‘white mule whisky’ with intent to sell the same, contrary, ***” etc.
Before trial appellant unsuccessfully moved to quash the affidavit which charged the alleged offense, because it appeared upon the face thereof that the facts stated in the affidavit do not constitute a public offense, for the reason that the statute which defined the offense has been repealed (chapter 4, § 4, Acts 1917, as amended chapter 250, § 1, Acts 1921, as amended chapter 23 § 1, Acts 1923) and that there is no existing law upon which the charge may be predicated.
Appellee's proposition is, that the alleged offense is based upon section 1, c. 23, p. 70, Acts 1923, and that the offense named in the act and charged in the affidavit is the unlawful possession of intoxicating liquor; that the word “keep” in the affidavit means “possess,” the word used in the statute and that the words “with intent to sell the same” in the affidavit are mere surplusage.
[1] The possession of intoxicating liquor was not an offense under section 1, c. 250, p. 736, Acts 1921, for the reason that the title of the original act did not comprehend the mere possession of intoxicating liquor. The amendatory act, Acts 1923, p. 70, supra, does not amend the title to the original act. In the case at bar the court holds that the title to the act is not broad enough to comprehend the mere possession of intoxicating liquor. Crabbs v. State (1923) (Ind. Sup.) 139 N. E. 180;Powell v. State (1923) (Ind. Sup.) 139 N. E. 670;Walker v. State (1924) (Ind. Sup.) 142 N. E. 16.
Appellant's proposition is, that the affidavit was prepared to charge a violation of the Prohibition Law as amended by the General Assembly in 1921, which law made it an offense to keep intoxicating liquor with intent to sell the same, and which amendatory act has since been repealed. Chapter 250, § 1, p. 736, Acts 1921.
[2] The amendatory act of 1921, supra, which made it a criminal offense to keep intoxicating liquor, with intent to sell the same, was amended by the General Assembly in 1923. Acts 1923, p. 70. The amended section omitted that part of the section amended which made it a criminal offense to keep intoxicating liquor with intent to sell, etc., which in...
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