The State v. Sopher
| Decision Date | 01 November 1901 |
| Docket Number | 19,618 |
| Parties | The State v. Sopher |
| Court | Indiana Supreme Court |
From Hamilton Circuit Court; J. F. Neal, Judge.
From a judgment acquitting William L. Sopher of the charge of selling intoxicating liquors, the State appeals on reserved questions of law.
Appeal sustained.
W. L Taylor, Attorney-General, C. C. Hadley, Merrill Moores, J. F Beals and W. L. Carey, for State.
G Shirts and W. R. Fertig, for appellee.
Appellee was prosecuted in the lower court for the crime of selling intoxicating liquors without being duly licensed according to the laws of this State. On a trial before a jury he was acquitted of the charge, and the court rendered its final judgment discharging him. The State, under § 1915 Burns 1901, § 1846 Horner 1897, reserved certain questions of law arising on the charge of the court to the jury, and by virtue of the provisions of section eight of an act of the legislature entitled "An act concerning appeals," etc., approved March 12, 1901 (Acts 1901, p. 565), § 1337h Burns 1901, this appeal is taken directly to this court for the purpose of presenting and having determined the question in respect to the proper construction of the second proviso of section four of an act of the legislature, to regulate and license the sale of intoxicating liquors, etc approved March 17, 1875 (Acts 1875, p. 55), § 7279 Burns 1901, § 5315 R. S. 1881 and Horner 1897.
Appellee has moved to dismiss this appeal principally upon the grounds (1) that the notices thereof given to the clerk of the lower court and to appellee were signed by the prosecuting attorney, instead of being signed by the Attorney-General; (2) that the assignment of errors has been signed by the prosecuting attorney instead of the Attorney-General; (3) because the appeal does not present a question arising upon the proper construction of a statute within the meaning of § 1337h Burns 1901.
Section 1915 Burns 1901, § 1846 Horner 1897, provides that That the proper prosecuting attorney, in all criminal cases appealable by the State, is fully authorized to subscribe his name to the appeal notices required by § 1960 Burns 1901, § 1887 Horner 1897, and to take all of the necessary steps leading up to an appeal to this court, can not be successfully disputed. It is true that it may be properly asserted that the Attorney-General, under the law, has a general supervision over all of the litigation pertaining to the State, or in which the latter is concerned, and in the event, in a criminal case, the prosecuting attorney should fail or refuse to take the necessary steps to effectuate an appeal by the State, the Attorney General may interpose and take the steps required to perfect such an appeal. The prosecuting attorney being empowered, under the statute, to take an appeal when the defendant is acquitted in a criminal cause, is impliedly authorized to do all and singular that which is essential in appealing a cause to this court, including preparing and signing the assignment of errors. When an appeal in a criminal cause, whether taken by the State or by the defendant, reaches this court, it then, under the law, becomes the imperative duty of the Attorney-General to represent the State therein. State, ex rel., v. Jamison, 142 Ind. 679, 42 N.E. 350; Stewart v. State, 24 Ind. 142.
In State v. Jamison, supra, we said: "While the services of the prosecuting attorney may be and generally are accepted by the Attorney-General, in behalf of the State, in such appeals, still the latter officer has the exclusive control and management of the case upon appeal." While we have said that the prosecuting attorney is authorized to subscribe the assignment of errors when the State appeals, still the Attorney-General is equally empowered to sign such pleadings, and the signature thereto of either of these officials will suffice.
In regard to the third ground alleged in the motion to dismiss, it may be asserted that the record discloses that the charge of the court of which the State complains clearly raises a question relative to the proper construction of the second proviso of the fourth section of the statute under which appellee applied for license. The crime of which appellee was charged is but a misdemeanor, in which appeals to this court or the Appellate Court, as a general rule, by virtue of the provisions of the act of March 12th, supra, are no longer allowed, except for the purposes specified in § 1337h Burns 1901. An examination, however, of the provision of the statute in question fully discloses that it is, at least, impressed with some ambiguity or uncertainty, therefore it is open to judicial construction, and this appeal, under the circumstances, must be held to be authorized within the meaning of § 1337h, supra, for the purpose of presenting the question only as to the proper construction of that provision. The motion to dismiss is therefore denied.
Turning to the facts in this case which were agreed to by both parties upon the trial below, and introduced as the evidence in the case, we find them to be substantially as follows: At the December session of the board of commissioners of Hamilton county, Indiana, William L. Sopher, appellee herein after giving the required notice, filed his application before said board for a license to be granted to him to sell intoxicating liquors, with the privilege of allowing the same to be drank upon the premises where sold, such premises being a certain building situated in one of the wards of the city of Noblesville, in said Hamilton county, Indiana. Certain voters and citizens of the township and ward in question remonstrated in writing before the board against granting a license to appellee to sell intoxicating liquors, for the alleged reason that he was not a fit person to be entrusted therewith. The application and remonstrance were heard by the board of commissioners at its said December session, and thereupon a license to sell such liquors, with the privilege of allowing the same to be drank on the premises where sold, was granted to appellee. On December 11, 1899, after being awarded a license by the board, as aforesaid, and before an appeal to the circuit court had been taken by the remonstrators, appellee paid to the treasurer of said Hamilton county $ 100 as required by the statute, and executed the necessary bond to the approval of the county auditor, and thereupon the latter official in pursuance of said order of the board, issued a license to him to sell intoxicating liquors in the building designated and described in his notice and application. On December 16, 1899, after the issuing of the license to appellee, and within ten days from the date of the order of the board granting the same, the remonstrators in said cause filed their appeal bond with and to the approval of the county auditor and duly appealed from said order of the board of commissioners to the Hamilton Circuit Court, and thereupon a transcript of all of the proceedings before the board in said matter was filed by the auditor with the clerk of the Hamilton Circuit Court, on December 29, 1899, the latter date being during the November term, 1899, of said court, and said cause was thereupon docketed as a cause pending therein. The February term, 1900, of the Hamilton Circuit Court, being the term next following the November term, began on the first Monday in February, 1900, and closed on the 29th day of March, 1900. On the 6th day of March, 1900, the remonstrators filed a motion in said cause to quash the notice given by the appellee of the pendency of his application before the board of commissioners, which motion was finally overruled in the Tipton Circuit Court, to which said cause was venued as hereinafter shown. At the April term, 1900, of the Hamilton Circuit Court, which term commenced on the first Monday of April, appellee applied for and secured a change of venue of said cause to the Tipton Circuit Court. At the April term, 1900, of the latter court, which term commenced on the 4th Monday in April, appellee applied for and obtained a change of venue from the regular judge, and subsequently, at the same term, he applied for and secured a continuance of the cause until the following August term of said court. In September, 1900, during the said August term, an amended remonstrance was filed by the remonstrators, and various motions were made in said cause, and on the 23rd day of November, 1900, at the time of the trial of appellee on the said charge of the unlawful selling of liquor, said cause still remained pending and undetermined in the said Tipton Circuit Court. On July 14, 1900, in Hamilton county, Indiana, appellee, assuming to act under his said license, sold to one Lee Farley, a pint of intoxicating liquors, to wit, whiskey, for the price of twenty-five cents. Appellee admitted this sale and sought to justify his action in selling it under the authority of the license granted to him by the board of commissioners. The lower court, on the foregoing facts, gave to the jury the following instruction: ...
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