South Bend news-times. (South Bend, Ind.) 1913-1938, 1919-12-13
COMMENT ON NEW
LIQUOR RULING
Local Attorneys Discuss De-
CiSiOn Handed Down by
Supreme Court.

This IS the construction by prom
inent local lawyers put upon the
decision of the state supreme court
IN reversing the St Joseph circuit
court in the liquor case or Thomas
Ward Of South Bend
The ruling OF the supreme court
is the first 81 has made on Section
35 OF the prohibition law. and it's
holding that the mere possession Of
liquor does not constitute a public
offense Is taken by lawyers here 20
mean that IN order TO gain a convic-
ton, the state must show that the
defendant held the liquor for sale.
Judge GIlmer's Opinion.
Judge Frank GHmer of the city
court said Friday. in commenting on
the supreme courts decision, that
the ruling will make il much more
difficult 10 obtain convictions for
violation OF the prohibition law
1T will now be almost necessary
20 show an actual sale before a con-
viction can be obtained" said the
city judge. other lawyers hold the
same view
The AFFIDAVIT against Ward was in
TWO counts. the first count charging
The unlawful keeping OF intoxicating
liquor with intent TO sell, and the
second count merely charging the
unlawful possession OF such liquors.
The papers in the case show that
The first count charging intent TO
sell" was ignored in the trial case.
anc that the defendant was only
found guilty on the second count,
which merely charges unlawful
possession"
The supreme court concluded that
the second count o fthe affidavit on
which appellant was tried and con-
victed failed to state a public Of
Tense and the motion in arrest of
judgment should be sustained"
Under Section 30
The defendant was found guilty
under Section 80 of the prohibition
law passed in 1917. This section
provides that within 10 days after
The act becomes operative every per
son except licensed pharmacists,
wholesale druggists, manufacturers.
etc, shall remove all intoxicating IL
quOrs in his possession from the
state. and failure TO do so shall be
prima facie evidence that such IL
auor is kept for the purpose of be
ing sold, bartered or given away.
An exception is made in this section
allowing a person TO keep one gallon
of intoxicating liquor - quarts of
beer. or wine manufactured for do
nestle consumption.
The supreme court decision find
ing that Ward was not guilty under
Section 80 in relation to the count
on which ne was convicted. has led
10 the impression in some quarters
that the effect OF the decision is to
nullify Section 50. thus virtually re-
moving any limit 10 the amount OF
liquor which any one may have in
his possession at the present time.-
The supreme court cited in detail
a decision by the supreme court OF
the state OF Washington in the case
Of the State vs.. Eden, which il be-
lieved covered the material points
sat issue in the Indiana case, as the
Washington supreme court decided
tEat the keeping OF liquor under
section Of the Washington statute
was not a crime unless made so by
another section.
lit Is concluded Dy the supreme
court from the authorities cited that
the Indiana general assembly in
passing Section 25 of the prohibi-
ZION law intended it to be used I'm
support of the section charging with
intent to sell.
Construction Of Statutes.
We are not unmindfuI." the SUI
preme court says. "of the we'll recog-
nized rule that courts should so con
strue statutes as 20 meet the mis-
chief sought to be remedied but
where. as here. the legislative inten-
ton is so plain, and the enactment
MS a whole covers the various forms
OF evil existing and sought to be
corrected at the time il was passed. /
the reason for the rule ceases It
may be said that Section IS was in
tended to furnish an additional
penalty 20 that specifically mention
ed in Section 50. but we can not
agree to this conclusion for in our
opinion the penalty provided in Sec
ton IS. has reference to those sec
tions IN the act where the doing or
the failure 80 do certain things is
made unlawful and no penalty is
therein provided for a violation
thercoE.
we therefore conclude that the
second count Of the affidavit upon
which appellant was tried and con-
victed failed 20 state a public Offense
and the motion in arrest of judg-
ment should have been sustained
Judgment reversed with instruc
tions 20 the trial court TO sustain
appellants motion in arrest of judy
ment and for further proceedings
not inconsistent with this opinion
Not "A Druggist
II was shown in the case that
Ward was not druggist or manu-
factIrer. but had 20 sand under the
provisions concerning an ordinary
person who possesses more Hquor
than the small amounts expected.
The supreme court held that Sec
ton IS is not ambiguous in its Ian
guage but the language is plain
and fits purpose clear. Ii is noted
that this section docs not make the