State v. Myers

• Decision Date: 01 October 1896
• Docket Number: 17,743
• Citation: 44 N.E. 801,146 Ind. 36
• Parties: The State v. Myers
• Court: Indiana Supreme Court

44 N.E. 801

146 Ind. 36

The State v. Myers

No. 17,743

Supreme Court of Indiana

October 1, 1896

From the Vigo Circuit Court.

Reversed.

W. A Ketcham, Attorney-General, S. M. Huston, E. F. Ritter Duncan, Smith & Hornbrook, and F. E. Matson, for State.

Lamb & Beasley, S. R. Hamill, Allen Zollars, Stuart Bros & Hammond, Elliott & Elliott, and Baker & Daniels, for appellee.

OPINION

Jordan, J.

This prosecution is based upon sections 2 and 4 of an act of the General Assembly, approved March 11, 1895, (Acts 1895, p. 248). A statement of the charges against the appellee was given in the appeal of State v. Gerhardt, 145 Ind. 439, 44 N.E. 469, and the principal questions herein involved were, in that case, decided adversely to the contentions of counsel for appellee. It is insisted that the information does not sufficiently charge a public offense under either of said sections, for the reason that it alleges only that the defendant "was engaged in the sale of spirituous, vinous, and malt liquors." The contention is that after the words "malt" the words "and other intoxicating liquors" should have been inserted in the information, and that this omission is fatal to the pleading. The insistence is, that as section 10, of the statute in controversy, declares that its provisions "shall apply to persons, places and sales of spirituous, vinous, malt, and other intoxicating liquors, whether conducted under the law of the State of Indiana licensing, regulating and restricting the sales of such liquors to be used as a beverage, or by virtue of any laws of the United States," etc.; that the legislature thereby imposed a limitation upon the operation of the law, and hence no prosecution can be maintained, under sections 2 and 4, unless it is made to appear that the accused was engaged in conducting a saloon wherein he sold not only such intoxicating liquors as spirituous, vinous and malt, but in addition to these, other intoxicating liquors. Or, in other words, if the liquor seller was engaged in selling spirituous liquors alone, to be drunk as a beverage, he could not, under the "Nicholson Law," be required to conduct the sales thereof separate from other business, or to exclude devices for amusements from his saloon, or to remove his screens during the times in which intoxicating liquors are prohibited by law.

Upon an examination of the statute as an entirety, the fallacy of appellee's proposition is apparent. It is true, as contended, that in section 10 the clause or expression, "and other intoxicating liquors," follows immediately after the word "malt," but in the preceding sections, namely, 1, 2, 3, 4, 5, 6, and 9, after the words "spirituous, vinous, malt," the clause "or other intoxicating liquors" invariably follows; "or" being used disjunctively in each particular instance. It is a well recognized canon of interpretation by which courts are guided in the consideration of statutes that where the...