Ward v. State

• Decision Date: 10 December 1919
• Docket Number: 23,585
• Citation: 125 N.E. 397,188 Ind. 606
• Parties: Ward v. State of Indiana
• Court: Indiana Supreme Court

125 N.E. 397

188 Ind. 606

Ward v. State of Indiana

No. 23,585

Supreme Court of Indiana

December 10, 1919

From St. Joseph Circuit Court; Walter A. Funk, Judge.

Prosecution by the State of Indiana against Thomas Ward. From a judgment of conviction, the defendant appeals.

Reversed.

McInernys Yeagley & McVicker, for appellant.

Ele Stansbury, Attorney-General, A. B. Cronk, and Dale F Stansbury, for the state.

OPINION

Myers, J.

Upon an affidavit filed in the St. Joseph Circuit Court appellant was tried and convicted of having in his possession certain intoxicating liquor, alleged to be in violation of § 35 Acts 1917 p. 15, § 8356a et seq. Burns' Supp. 1918. The affidavit was in two counts--the first charged the unlawful keeping of intoxicating liquors with intent to sell, and the second charged unlawful possession of such liquors. The jury returned a verdict of guilty on the second count, and, in accordance with the jury's verdict, appellant was sentenced to pay a fine of $ 50 and imprisonment in the county jail for ten days. The verdict of the jury is silent as to the first count, and amounts to a finding of not guilty on that count. Harvey v. State (1881), 80 Ind. 142.

Appellant's motion in arrest of judgment was timely made and overruled, and this ruling is assigned as error. The only question presented by this appeal is, Was appellant charged with a public offense?

In order to sustain the ruling of the trial court, we are called upon to so construe § 35, supra, as defining a public offense, and then look to § 38 of the same act as fixing a penalty for its violation. The rule is well settled that courts may be called upon to construe an ambiguous, uncertain or indefinite statute. But this rule does not obtain, where the language used is plain and its purpose clear, for the reason, as is said in the books, there is no room for construction. State v. Terre Haute Brewing Co. (1916), 186 Ind. 248, 115 N.E. 772; Cleveland, etc., R. Co. v. Marshall (1914), 182 Ind. 280, 105 N.E. 570, Ann. Cas. 1917A 756; Cheney v. State, ex rel. (1905), 165 Ind. 121, 74 N.E. 892; Eastman v. State (1887), 109 Ind. 278, 10 N.E. 97, 58 Am. Rep. 400; 2 Lewis' Sutherland, Statutory Construction (2d ed.) § 367.

Section 35, supra, reads as follows: "Within ten (10) days after the date when this act has become operative, every person except licensed pharmacists, wholesale druggists, manufacturing chemists or public hospitals shall remove or cause to be removed all intoxicating liquors in his possession from the state and failure to do so shall be prima facie evidence that such liquor is kept therein for the purpose of being sold, bartered, exchanged, given away, furnished or otherwise disposed of in violation of the provisions of this act: Provided, however, That this section shall not apply to alcohol kept for chemical or manufacturing purposes, or to one (1) gallon of intoxicating liquor, other than beer, or twelve (12) quarts of beer, or all wine manufactured for his own domestic consumption kept in his own home for domestic use, held by an individual; and provided further, that any licensed pharmacist, wholesale druggist, manufacturing chemist or public hospital shall report to the clerk of the circuit court within said ten (10) day period the kinds and amount of intoxicating liquor on hand."

The affidavit shows that appellant was not a licensed pharmacist, wholesale druggist, or manufacturing chemist; consequently he was a person within the class required to "remove or cause to be removed all intoxicating liquors in his possession from the state," except a certain specified quantity kept for his own use, and, failing so to do, the penalty fixed is that the possession of such excess quantity shall be "prima facie evidence that such liquor is kept therein for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this act." It will be noticed that this section does not make the possession by such person of intoxicating liquors in any quantity unlawful, nor is any other penalty provided for failure to remove the same within the ten-day limit. By reference to § 4 of this act it will be seen that it is made unlawful for any person "to keep any intoxicating liquor, with intent to sell, barter, exchange, give away, furnish or otherwise dispose of the same, except as in this act provided," so that, when § 4 and § 35 are considered together, it may be plausibly said that the purpose of § 35 was to aid in the enforcement of § 4 by establishing a rule of evidence to sustain a charge of unlawfully keeping, etc. State v. McIntyre (1905), 139 N.C. 599, 52 S.E. 63.

As to any matter material to the question here presented, § 35, supra, and § 28, Laws of Washington 1915 p 2, are substantially the same. The Supreme Court of that state had before it the question of whether the facts stated in an information based upon § 22 of the laws of that state charged a crime. The act of which § 35, supra, is a part has no provision corresponding to § 22 of the Laws of Washington, but the Supreme Court of Washington in passing upon the question before it deemed it necessary to consider § 28, and in an opinion filed...