State v. Schipper
Decision Date | 14 November 1923 |
Docket Number | 24,260 |
Citation | 141 N.E. 330,193 Ind. 595 |
Parties | State of Indiana v. Schipper |
Court | Indiana Supreme Court |
From Dearborn Circuit Court; Charles A. Lowe, Judge.
Prosecution by the State of Indiana against Louis B. Schipper. From a judgment for defendant, the State appeals.
Reversed.
U. S Lesh, Attorney-General, and Mrs. Edward Franklin White Deputy Attorney-General, for the State.
E. G Bielby, for appellee.
The appellee was prosecuted by indictment for a violation of section 4 of the Prohibition Act of 1917, (Acts 1917 p. 15) Acts 1921 p. 736, being § 8356d Burns' Supp. 1921. The charging part of the indictment is as follows:
"That Louis B. Schipper on the 20th day of December, A. D., 1922, at said county and state aforesaid did then and there unlawfully manufacture, transport and possess intoxicating liquor, and did then and there unlawfully keep and have in his possession intoxicating liquor with the intent then and there to sell, barter, exchange, give away, furnish and otherwise dispose of the same to persons to this grand jury unknown, within this state."
A motion was made to quash the indictment which was sustained and exceptions to the ruling of the court quashing such indictment reserved by the prosecuting attorney. Judgment was rendered for the defendant that he go hence without day. From such judgment the state appeals, and the only question presented by this appeal is the sufficiency of the indictment to withstand the motion to quash. The appellee's motion to quash the indictment, omitting the caption, is as follows:
The appellee relies on a number of cases cited in his brief to support his contention that the indictment is bad for duplicity.
In Knopf v. State (1882), 84 Ind. 316, cited by appellee, on page 321, the court says: "By the facts stated in the affidavit and information in this case, it is manifest that the appellant and his co-defendant are charged with separate and distinct offences, made such by different statutes, and for which entirely different punishments have been and are prescribed."
In the State v. Weil (1883), 89 Ind. 286, another case cited by appellee, the court says on page 289: "We have given a full summary of the information in this case, and it is apparent therefrom, as it seems to us, that the appellees are charged with separate and distinct offenses, for which different punishments are prescribed, in one and the same count." Other cases cited by appellee are easily distinguished from the one at bar.
The section of statute upon which this indictment is based provides as follows: "It shall be unlawful for any person to manufacture, transport, possess, sell, barter, exchange, give away, furnish or otherwise dispose of any intoxicating liquor, or to possess or keep any intoxicating liquors with intent to sell, barter, exchange, give away, furnish or otherwise dispose of the same, except as in this act provided. * * *"
It will be observed that the several offenses enumerated in such statute are disjunctively stated and that the punishment prescribed is the same for each one. The rule for construing such statutes is stated in Bishop, New Criminal Proc. (2d ed.) § 436 as follows:
In 10 Ency. of Pl. and Pr. 536, it is said,
In State v. Sarlls (1893), 135 Ind. 195, 34 N.E. 1129, it is held that it is a rule of construction in this state that, when a statute makes it a crime to do any one of several things mentioned disjunctively, all of which are punished alike, the whole may be charged conjunctively in a single count.
In State v. Fidler (1897), 148 Ind. 221, 47 N.E. 464, on page 222, the court says, "The rule in this state and elsewhere is that when a statute makes it a crime to do any one of several things mentioned disjunctively, all of which are punished alike, the whole may be charged conjunctively in a single count without objection for duplicity."
The rule announced in State v....
To continue reading
Request your trial