King v. State

2 Ind. 523

• Court: Indiana Supreme Court
• Decided: May 28, 1851
• Status: Published

Opinion

Blackford, J.

This was an indictment for retailing spirituous liquors without license. The indictment is to the following effect:

That the defendant, on the eighteenth of August, eighteen hundred and forty-nine, at the county of Jefferson aforesaid, not being then and there licensed, according to the laws in force, to vend spirituous liquors by retail, did then and there sell spirituous liquors to one Joseph Willoughby to be drunk in the out-house of him the said John King then and there situate, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Indiana.

Plea, not guilty. The cause was submitted to the Court, and judgment rendered for the state.

The only error assigned is, that the indictment concludes against the form of the statute, in the singular, instead of against the form of the statutes, in the plural.

The state contends that the indictment is founded on one statutory provision only, namely, the 93d section of the 53d chapter of the Revised Statutes of 1843. That section reads as follows: “Every person not being licensed according to the laws in force at the time to vend spirituous liquors by retail, who shall barter or. sell any spirituous liquor to be drunk in his or her house, out-house, yard, or garden, or appurtenances thereto belonging, or who shall barter or sell any such spirituous liquor by a less quantity than a quart at a time, shall be fined in any sum not less than two dollars nor more than twenty dollars.” R. S. 1843, p. 979.

The defendant refers us to three other statutes which, he contends, must be relied on by the- state, as well as said section of the statute of 1843, to support this indictment. These other statutes are a statute of 1843 (R. S. 1843, p.235); a statute of 1847 (Acts of 1847, p. 46); and a statute of 1849 (Acts of 1849, p. 83). Each of these three statutes referred to by the defendant, relates exclusively to the manner of obtaining licenses to vend spirituous liquors, except section 4 of the act of 1849, which section will be no further noticed; this Court having decided it to be a nullity. Cheezem v. The State, May term, 1850

(1).

'We have heretofore held that when one statute defines an offence, and another prescribes the punishment, the indictment must conclude in the plural, contra formara statutorum. The State v. Moses, 7 Blackf. 244. That decision is no doubt correct, for the obvious reason that neither statute would, of itself, support the prosecution. But the case before us is entirely different. The said 93d section of the statute of 1843, above copied, not only defines the offence, but also prescribes the punishment. The said other statutes, relating solely to the obtaining of licenses to retail spirituous liquors, may be considered as only regulating the operation of the said 93d section of the statute of 1843. The rule is, that where one statute continues a former one in part, or explains what was doubtful, or regulates its operation, the conclusion of the indictment should be in the singular. 1 Chit. Crim. Law, 292.

J. R. Troxell, for the plaintiff. D. Wallace, for the state.

Chancellor Walworth uses the following language on the subject: “ The sixth objection is, that the indictment should have concluded contra formam statutorum, in the plural. Such a conclusion is sometimes necessary where one statute is in relation to another, as where one creates the offence and another fixes the penalty; but where the statute creating the offence is only amended or regulated, or altered in parts thereof which do not relate to the of-fence or to the punishment thereof, a conclusion in the singular is proper.” Kane v. The People, 8 Wend. 212.

There has been a case in this Court very similar to the present one. In that case, the indictment was founded on the same section of the statute of 1843 upon which the present indictment is founded. The offence was charged to have been committed in June, 1849, and the indictment was found at the October term following. The conclusion of that indictment was in the singular, contra formam statuti. No objection was made to the indictment on account of the cdnclusion; and the judgment, which was for the state, was affirmed.

The statutes referred to by the defendant, on the subject of obtaining licenses, have no relation to the description of the offence in question, or to the quantum of the punishment. Those statutes, as we have already said, only regulate the operation of said 93d section of the statute of 1843. If the defendant violated the provisions of that section as charged in the indictment, he is liable to be punished as that section prescribes.

Per Curiam.

-The judgment is affirmed with 5 per cent, damages and costs.

See ante, p. 149.