The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1902-08-10
COURTS MUST USE DISCRETION
To CONSTITUTE LITERALLY WOULD
DEFEAT PURPOSE OF LAW.
Instances I'm which n Liberal Inter
probation Is Necessary-COde
Clear as n Whole.


court held that where it is clearly apparent
that a word was not used in statute in its
ordinary or usual meaning. and 10 so con-
strue 1t would defeat the evident intent of
the Legislature in the passage of such
statute, the court will give to such word
the meaning that it is deemed the Legisla-
ture intended it to have according to the
sense In which it was used.
If IL were not for this view of the au-
thority and liberty of the court in con-
strueing the statutes-thOugh this view
may conflict with Section 24O of Burnss Re-
vfsed Statutes. which says. Words and
phrases shall be taken in their plain or
ordinary and usual sense'-many of our re-
spected business men would be paying fines
weekly; the State might be without the
news service of several daily papers; some
of our esteemed enemies in the Spanish
war might have suffered the death penalty
II they had fallen into the hands of a strict
Indiana Judge and jury, and one statute
almost makes IL a crime to think evil of
your neighbor.
Mr.. Burns. in his last revision Of the code,
has wisely left the wording of the statutes
just as they were passed in the Legislature,
though he found many inaccuracies in the
use OF language which should be corrected.
What seems TO be a curious oversight
OF our lawmakers is found in Section 1915
OF the last revision of Burns's Annotated
Statues, which says. Whoever levies war
against this State. or knowingly adheres to
its enemies giving them aid and comfort.
is guilty OF treason against the State of
Indiana, and, upon conviction thereof shall
suffer death be imprisoned in the state
prison for life, in the discretion of the
jury" Ii will be seen readily that by a
strict construction of this section, person
may be convicted of treason against the
State OF Indiana, though he has never been
a citizen of that State and does not owe
allegiance to it; that is, a citizen of any
nation at war with the United States is
guilty of the crime universally regarded
the most heinous. This is clearly not in
accordance with the ideas OF treason in
statutes and the common law, and besides
Is contrary to the Constitution of the
United States; but. of course it would re-
ceive liberal Interpretation by the courts.
and II Admiral Cervera and his companions
had been sent here instead Of to Anna polls.
they would have received courteous
treatment as was given to them in Mary
land.
VOCATION THE WORD MEANT.
The case cited above as an authority for
the liberal Interpretation of the statutes
came up on an indictment which followed
the language of Section 2Oss, which says
Whoever. being over fourteen years of
age, is found on the first day of the week.
commonly called Sunday, rioting, hunting
fishing. quarreling. at common labor or en-
gagged in his usual avocation works Of
charity and necessity excepted shall be
than one dollar" Now. every schoolboy
knows that "avocation' means "recrea-
tion." sports" literally, calling away
from ones vocation or business. To con-
strue this statute according to the letter
would make every one playing tennis. golf.
riding a bicycle driving for pleasure
liable to a fine OF these were their usual
means of recreation). while the man who
kept his store open would escape punish
ment But II is clear that the Legislature
meant vocation" not "avocation," and
so II is construed by the courts.
From Section 1898. which says, who
ever makes. composes or dictates, prints
or writes a libel to be published or pro-
cures the same TO be done shall be deemed
guilty of criminal libel. it will be seen
that. contrary to the usual laws against
libel. it is criminal in Indiana merely to
write down your unfounded suspicious in
regard TO others If you intend to publish
them even if your intentions are changed
or frustrated. Publish means 10 com
municate TO a third person, yourself and
the supposed bad person being the other
two. Therefore If you write letter to a
friend saying bad things about your neigh
Dor you are liable to a prosecution for
criminal libel even though you should
Immediately burn the letter without show
ing 1t TO any one But it would be a
strange judge who would not interpret this
section very literally
A COMPREHENSIVE STATUTE.
One of the most strict and comprehensive
of the acts is that against lotteries and
schemes involving the getting of money or
property by chance. Section PIP, concern
ing lotteries, is as follows: Whoever
writes. prints. advertises or publishes in
any way, an account OF any lottery, gift
enterprise or scheme of chance of any de-
scriptiOn. by whatever name, style title
the same may be denominated or known,
stating when and where the same is TO be
drawn. or the prizes therein or any of them,
or the price Of ticket. or showing therein
where such ticket may be obtained, or in
any way giving publicity 10 such lottery.
sift. enterprise or scheme OF chance. shall
be fined not more than 500 nor less than
80
II Is plain from this section that several
newspapers entering the State are liable
10 a fine OF at least So This might seem
small matter. but one must not think
immunity Is 10 be purchased by paying the
fine; such statutes as the one last quoted
are prohibitive. that Is they mean that
the offender should refrain from doing the
acts stated. and the fine is a simple way
! OF giving him a gentle hint not to commit
the offense again. The enforcement of this
| law Is. or course. in the province of the
executive branch OF the government; the
courts would probably eonstrue il to the
| very letter.
One might be surprised 10 ind that II he
wished 10 start large quail farm. to re-
stock the entire State with quail and also
keep a supply for the market, he could