Yazel v. State

Decision Date05 June 1908
Docket NumberNo. 21,152.,21,152.
Citation170 Ind. 535,84 N.E. 972
PartiesYAZEL v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Daviess County; H. Q. Houghton, Judge.

Archibald Yazel was convicted of an offense, and appeals. Affirmed.

Gardiner, Tharp & Gardiner, for appellant. James Bingham, Atty. Gen., E. M. White, H. M. Dowling, A. G. Cavins, and E. T. Laughlin, for the State.

MONKS, J.

Appellant was convicted under that part of section 1 of an act approved March 16, 1907 (Acts 1907, p. 689, c. 293), being section 8351, Burns' Ann. St. 1908, which took effect March 16, 1907, making it an offense to “keep, run, or operate a place where intoxicating liquors are sold, bartered, or given away in violation of the laws of this state,” or to “be found in possession of such liquors for such purpose.” The errors assigned and relied on for reversal are (1) the court erred in overruling appellant's motion to quash the affidavit; (2) the court erred in overruling appellant's motion for a continuance of said cause; (3) the court erred in overruling appellant's motion in arrest of judgment; and (4) the court erred in overruling appellant's motion for a new trial.

Appellant first insists that the “affidavit is fatally defective for the reason that it does not state that appellant was not a licensed liquor dealer, or that he was not a licensed pharmacist, or a wholesale liquor dealer.” The section of the statute in question is as follows: “That any person not being licensed under the laws of the state of Indiana who shall sell or barter, directly or indirectly, any spirituous, vinous, or malt liquors except as herein provided, or who shall sell or barter, directly or indirectly any spirituous, vinous or malt liquors to be drunk, or suffered to be drunk in his house, outhouse, yard, garden or appurtenances thereto belonging, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than fifty dollars ($50) nor more than one hundred dollars ($100) for the first offense, and not less than one hundred dollars ($100) nor more than five hundred dollars ($500), to which the court or jury trying the case shall add imprisonment in the county jail of not less than thirty days nor more than six months for the second or any subsequent offense. And any person who shall keep, run or operate a place where intoxicating liquors are sold, bartered or given away in violation of the laws of the state, or any person who shall be found in possession of such liquors for such purpose shall be deemed guilty of a misdemeanor and upon conviction shall be fined in any sum not less than fifty dollars ($50) nor more than five hundred dollars ($500), to which the court or jury trying the case shall add imprisonment in the county jail of not less than thirty days nor more than six months [our italics]: Provided, that none of the provisions of this act shall apply to any person, firm or corporation engaged as a wholesale dealer who does not sell in less quantities than five gallons at a time and provided that none of the provisions of this section shall apply to any druggist or pharmacist who is licensed as such by the state board of pharmacy; provided, further, that a wholesale dealer as used in this act, shall be construed to mean a person, firm or corporation whose sole business in connection with the liquor traffic is to sell at wholesale to retail dealers licensed by the laws of the state, or to wholesale liquor dealers or to druggists or pharmacists who are licensed as such by the state board of pharmacy.” Acts 1907, p. 689, c. 293 (section 8351, Burns' Ann. St. 1908). It is well settled that it is not necessary to negative an exception or proviso in a statute unless it forms a part of the definition of the offense. If the exception is in a subsequent section, or in a separate proviso in the same section, it need not be negatived. Hewitt v. State, 121 Ind. 245, 246, 247, 23 N. E. 83, and authorities cited; Crawford v. State, 155 Ind. 692, 695, 696, 57 N. E. 931, and authorities cited; Tomlinson v. Bainaka, 163 Ind. 112, 114, 70 N. E. 155, and authorities cited; Gillett's Crim. Law (2d Ed.) § 132a; Wharton, Crim. Pl. & Prac. §§ 238, 239. Under this rule it is evident that in an affidavit charging an offense under the first part of said section (not in italics) it must be alleged that the person so charged was not licensed under the laws of this state, because this is a part of the definition of said offense; but it is no part of the definition of the offense, created by the clause in italics, under which this case is prosecuted, that the person should not have a license. A person licensed under the laws of this state to sell intoxicating liquors, who “keeps, runs, or operates a place where intoxicating liquors are sold, bartered, or given away in violation of the laws of this state,” or “who shall be found in possession of such liquors for such purpose,” is guilty of a violation of said clause, and his license is no defense. It is clear under the rule of pleading already mentioned it was not necessary to negative the exceptions contained in the proviso in said section.

It is next urged by appellant that, as the affidavit charged appellant with unlawfully keeping, running, and operating a place where intoxicating liquors were sold in violation of the laws of this state, and with keeping in his possession intoxicating liquors for the purpose of making such unlawful sales of the same, two crimes are charged, and the same is bad for duplicity. We think but one offense was...

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8 cases
  • Grider v. Scharf
    • United States
    • Indiana Supreme Court
    • 26 Mayo 1947
    ... ... arise under appellants' motion for a new trial, but that ... under ruling precedents in this state questions raised by the ... motion for a new trial could not be considered because a ... motion in arrest of judgment forecloses the right to file ... Co. v ... Case, 1889, 122 Ind. 310, 316, 23 N.E. 797; Eckert ... v. Binkley, 1893, 134 Ind. 614, 616, 33 N.E. 619, 34 ... N.E. 441; Yazel v. State, 1908, 170 Ind. 535, 539, ... 84 N.E. 972; Kelley v. Bell, 1909, 172 Ind. 590, ... 595, 88 N.E. 58; Turner v. State, 1910, 175 Ind. 1, ... ...
  • Yazel v. The State
    • United States
    • Indiana Supreme Court
    • 5 Junio 1908
  • Schondel v. State
    • United States
    • Indiana Supreme Court
    • 29 Noviembre 1910
    ...It was not necessary to negative any of the exceptions made by the provisos. This identical question was presented in Yazel v. State, 170 Ind. 535, 84 N. E. 972, and decided adversely to appellant's contention. When the jury was being impaneled in this cause, and after the defendant had exa......
  • Schondel v. State
    • United States
    • Indiana Supreme Court
    • 29 Noviembre 1910
    ... ... because it does not sufficiently negative the exceptions ... embraced in the provisos to which we have referred. It was ... not necessary to negative any of the exceptions made by the ... provisos. This identical question was presented in the case ... of Yazel v. State (1908), 170 Ind. 535, 84 ... N.E. 972, and decided adversely to appellant's ... contention ...          When ... the jury was being impaneled in this cause, and after ... defendant had examined all of the twelve jurors composing the ... panel and had excused one, he ... ...
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