Walter v. State

• Decision Date: 12 March 1886
• Citation: 5 N.E. 735,105 Ind. 589
• Parties: Walter v. State.
• Court: Indiana Supreme Court

105 Ind. 589

5 N.E. 735

Walter

v.State.

Supreme Court of Indiana.

Filed March 12, 1886.

Appeal from Knox circuit court.

Canthorn & Boyle, for appellant.

The Attorney General, for appellee.

Niblack, C. J.

The record before us shows that the following proceedings were had in the court below on the twelfth day of September, 1885:

“Now on this day come the grand jury of Knox county, and return into open court indictments numbered, respectively, namely, 2590, 2591, 2596, 2597, 2600, 2601, 2602, 2603, 2604, 2605, 2606, 2607, 2608, and 2609, each of said indictments being indorsed ‘A true bill,’ signed by C. P. Hollingsworth, foreman, and, also, signed by the prosecuting attorney, and said indictments are now examined by the court, and marked ‘Filed’ by the clerk.”

The indictment known as number 2608, omitting the formal conclusion, is in words and figures as follows:

“Knox Circuit Court, September Term, A. D. 1885.

The State of Indiana v. Theodore Walter.

indictment for selling without license.

The grand jury of Knox county, in the state of Indiana, good and lawful men, duly and legally impaneled, sworn, and charged, in the Knox circuit court of said state, at the September term for the year 1885, to inquire into felonies and certain misdemeanors in and for the body of said county of Knox, in the name and by the authority of the state of Indiana, on their oath do present that one Theodore Walter, late of said county, on the fifteenth day of July, A. D. 1885, at said county and state aforesaid, did then and there unlawfully sell to Jack Murphy malt and intoxicating liquor in a less quantity than a quart, to-wit, one gill, of lager beer, at and for the price of five cents; he, the said Theodore Walter, not then and there having a license to sell such intoxicating in a less quantity than a quart at a time.”

A motion to quash this indictment being first overruled, a trial by the court resulted in finding the defendant guilty as charged, in overruling a motion for a new trial, and in a judgment against the defendant upon the finding.

It is first insisted that it is not sufficiently shown by the record that the grand jury was properly impaneled before returning the indictment, and that for that reason the motion to quash the indictment ought to have been sustained. But, under the more recent decisions of this court, the record in this case discloses enough to justify the inference that the grand jury were lawfully impaneled. Alley v. State, 32 Ind. 476;Powers v. State, 87 Ind. 144;Stout v. State, 93 Ind. 150;Epps v. State, 102 Ind. 539; S. C. 1 N. E. Rep. 491; Padgett v. State, 103 Ind. 550; S. C. 3 N. E. Rep. 379.

It is next insisted that the indictment is materially defective in failing to aver that the sale was in a less quantity than a quart at a time; also in its failure to charge that Walter had no license to sell intoxicating liquor. In respect to the objection thus first made, the indictment is sufficient under the rules of pleading in criminal proceedings recognized in the cases of Arbintrode v. State, 67 Ind. 267, and Mullen v. State, 96 Ind. 304. As regards the second objection, lastly above made, it is sufficient to say that, taking all the averments in the indictment into consideration, it is obvious that the words “such intoxicating” used in the concluding sentence, evidently refers to the intoxicating liquor previously charged to have been unlawfully sold, and that the failure to repeat the word “liquor” in that connection was a merely clerical omission, not constituting a fatal defect.

It is still further insisted that section 12 of the act of 1875, touching the sale of intoxicating liquors, under which this indictment was returned, known now as section 5320, Rev. St. 1881, has been superseded and impliedly repealed by the section of the Acts of 1881 known as section 2090 of the Revised Statutes of that year, which reads as follows: “Whoever, by himself or agent, transacts any business or does any act without a license therefor, when such license is required by any law of this state, shall be fined not more than two hundred dollars, nor less than five dollars;” and that on that account the indictment ought to have been quashed. It is a rule of statutory construction that a general statute, without negative words, does not repeal the particular provisions of a former statute on a special subject, unless the two statutes are irreconcilably inconsistent. Potter's Dwar. St. 154; Sedg. St. Const. Law, 97; Smith, Comm. 879; Brown v. County Com'rs, 21 Pa. St. 37; Omitv. Com., Id. 426. The statutes of this state on the subject of the sale of intoxicating liquors have always been, as they still are, special and exceptional. Section 5320 is consequently not inconsistent with or repealed by the subsequent enactment of section 2090, the provisions of which ought to be construed as having reference to classes of business other than the sale of intoxicating liquors.

At the trial Charles Callaway was the principal witness for the state. He was recalled, and also testified on behalf of the defendant, among other things, as follows: “I know Jack Murphy, and have known him for some time. His right name is John Murphy, but I always call him Jack Murphy, and have often heard others so call him, but cannot say how he is generally called.” The rule fairly deducible from the authorities is that if two names are taken promiscuously to be the same name in common use, though they differ in sound, there is no variance between them. Where two names are derived from the same source, or where one is an abbreviation or corruption of the other, but both are taken...