Yazel v. State
Decision Date | 05 June 1908 |
Docket Number | No. 21,152.,21,152. |
Citation | 170 Ind. 535,84 N.E. 972 |
Parties | YAZEL v. STATE. |
Court | Indiana 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.
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: 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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Grider v. Scharf
... ... 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, ... ...
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Schondel v. State
...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......
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Schondel v. State
... ... 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 ... ...