State v. Sarlin
| Decision Date | 24 June 1919 |
| Docket Number | No. 23521.,23521. |
| Citation | 123 N.E. 800,188 Ind. 359 |
| Court | Indiana Supreme Court |
| Parties | STATE v. SARLIN. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Randolph County; Theo. Shockney, Judge.
Charles Sarlin was charged with unlawfully keeping whisky with intent to dispose of the same in violation of law. The trial court sustained his motion to quash the affidavit, and the State appeals. Judgment affirmed.
Ele Stansbury and Dale F. Stansbury, both of Indianapolis, for the State.
W. G. Parry, of Winchester, for appellee.
Appellee was charged, under section 8356d, Burns' 1918 Supplement, section 4 of chapter 4 of Acts 1917, p. 15, with unlawfully keeping six pints of whisky with the intent to dispose of the same in violation of this section.
The trial court sustained appellee's motion to quash the affidavit, and the state appeals.
[1][2] So much of the affidavit as is necessary is as follows:
“Did then and there unlawfully keep and have in his possession intoxicating liquor, to wit, six (6) pints of whisky, with the intent to sell, barter, exchange, give away, furnish or otherwise dispose of the same or use within the state of Indiana, etc.”
The affidavit then says that appellee was not the owner on April 2, 1918, was not a licensed pharmacist, wholesale druggist, manufacturing chemist, or the owner, manager, or operator of a public hospital or any person authorized by law to have intoxicating liquor in his possession.
We are not assisted by any brief from the appellee. We gather from the brief of the state and appellee's motion to quash that the only questions presented by appellee to the trial court were: (1) That section 4, supra, had to do alone with persons having liquor in bond on the 2d day of April, 1918; (2) that the affidavit was bad because the exception in the proviso of the act was not pleaded. The section is:
etc.
The first part of this section is general in its application and makes it a crime for “any person to manufacture, sell, barter, exchange, give away, furnish or otherwise dispose of any intoxicating liquor, or to keep any intoxicating liquor, with the intent to sell, barter, exchange, give away, furnish or otherwise dispose of the same,” etc.
It will be seen that it was the intention of the pleader to charge appellee with keeping intoxicating liquor with the “intent to sell, etc.” This is the second offense declared in the statute. This section of the statute is not intended to apply only to those having bonded liquor, but is to be general in its application. Therefore appellee's first contention in his motion to quash is erroneous. His second contention, that the exception contained in the proviso should have been pleaded, is also erroneous. Where an exception is in a proviso, or in a subsequent section of the statute, it need not be pleaded. Exceptions which are a part of the definition of the offense must be pleaded. Yazel v. State, 170 Ind. 535, 84 N. E. 972;State v. Paris, 179 Ind. 446, 101 N. E. 497.
[3] If the lower court had overruled this motion to quash and appellee were here questioning the correctness of that ruling, it would be proper for this court to sustain the ruling of the lower court on the theory that appellee had waived all objections to the affidavit except those pointed out; but, the court having sustained the motion to quash, we must assume, even though no valid reason was presented by appellee, that the court knew a valid reason, and, if we can discover one, it will be our duty to sustain the action of the...
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