Hammell v. State , 198 Ind. 45 ( 1926 )

Appellant, in the court below, was tried by a jury and convicted of the charge of unlawfully transporting intoxicating liquor, in violation of § 4, Acts 1917 p. 15, as amended, § 1, Acts 1923 p. 70. Judgment in accordance with the verdict. The affidavit was in five counts. A motion to quash each of these counts was overruled. This ruling and the overruling of his motion for a new trial are assigned as errors.

We will give attention only to such questions as are material to the count of the affidavit upon which appellant was convicted. The affidavit in question charged the offense — "transport" 1. — in the language of the statute and was not therefore subject to a motion to quash. Davy v. State (1924),195 Ind. 74, 144 N.E. 532; Smith v. State (1924), 194 Ind. 624, 144 N.E. 141; State v. Lewis (1924), 195 Ind. 344,145 N.E. 496; Cyrus v. State (1924), 195 Ind. 346, 145 N.E. 497;Anderson v. State (1924), 195 Ind. 329, 145 N.E. 311.

The causes relied on for a new trial are, that the court erred in giving on its own motion instructions Nos. 9, 10 and 11; insufficient evidence to support the verdict; verdict contrary to law.

Appellant insists that each of the instructions mentioned, as applied to the evidence, is ambiguous, misleading, and tended to confuse the jury as to the meaning of the word "transport," as used in the act alleged to have been violated. Hence, each of the specifications in support of the motion for a new trial are made to depend upon the evidence. Looking to the evidence, police officers of Muncie testified that at about 3:30 in the morning of November 10, 1923, they searched appellant's home and found in glass jugs and pint bottles about thirteen gallons of white whisky concealed in the attic. The officers took charge of the whisky and, at the trial, the same was introduced in evidence. Appellant told the jury he had been a resident of Muncie for twelve or fourteen years, and that his family, at that time, consisted of himself, wife and six children at home; that he was a molder and coremaker and had worked at the Muncie Foundry for seven years, and at the Muncie Malleable Castings Company, where he was then working, for about seven years; that he had never made or transported any whisky; that one evening about 8 o'clock, prior to the search by the officers, he went out to an old woodshed on his lot about twenty-five or thirty feet from his house for kindling, and there discovered the liquor in this shed; that the shed was not fully enclosed as he had knocked some of the boards off of the south end intending to tear it down. When he saw the liquor, "I didn't hardly know what to do about it so I just took it and hid it." "There was a machine out there used in that new water line. I don't know whether this stuff came from there or not, but anyhow it was in the shed." He carried the liquor from the woodshed and concealed it in the attic himself. He had constructed a new garage in which he kept his coal and his automobile. A portion of this garage was rented to another person for storing his Ford machine. His wife and children were in bed at the time. His wife testified that she did not know the liquor was in the house, and that she did washings. All of the evidence with reference to whether appellant possessed and hid the liquor is, in reality, immaterial, for the precise question is: Did appellant transport intoxicating liquor in violation of law?

As applicable to this evidence, the court instructed the jury, in substance, as follows: No. 9: That the offense charged in count 2 of the affidavit "is transportation of intoxicating liquor * * * and if the evidence shows beyond all reasonable doubt that the defendant transported intoxicating liquor or moved any intoxicating liquors from one place to another, then you should find the defendant guilty." No. 10 told the jury that the "word ``transport' means, as used in this statute, to carry over or across, to convey from one place to another, or to remove from one place to another." No. 11 told the jury that on November 10, 1923, the mere possession of intoxicating liquor was not unlawful, but if the defendant moved or carried or conveyed intoxicating liquor from one place to another, then he was guilty of transporting liquor.

The legislature has not attempted to define the word "transport," nor does it appear that it was used in any particular or technical sense. Under such circumstances, it 2. would seem that the general rule, requiring words and phrases of a statute to be taken and given their plain, ordinary and usual meaning, should control, unless such construction will defeat the manifest intent of the legislature. § 247 Burns 1926, § 240 Burns 1914; Booth v. State (1913),179 Ind. 405, 100 N.E. 563, L.R.A. 1915B 420, Ann. Cas. 1915D 987; Boyer v. State (1908), 169 Ind. 691, 83 N.E. 350.

This court has applied the foregoing general rule of statutory construction to the word in question, and given it its ordinary meaning — "to carry or convey from one place to another." Asher v. State (1924), 194 Ind. 553, 142 N.E. 407; Berry v. State (1925), 196 Ind. 258, 148 N.E. 143; Eiler v. State (1925),196 Ind. 562, 149 N.E. 62.

For the purposes of the cases last cited, the definition thus adopted was sufficient, for in each case, the alleged transportation was either upon a public thoroughfare or from one separate and distinct occupancy to the separate and distinct premises of another. The evidence in the instant case merely shows that appellant removed the liquor from his woodshed, a distance of twenty-five or thirty feet to his house, or from one spot to another on his own premises, and not to or from the premises or occupancy of another.

Appellant insists that under this evidence, the jury should have been instructed as to the meaning of the phrase "carry or convey from one place to another," or "to remove from one 3. place to another." His claim in this respect, when analyzed, is that the above phrases used in the instructions were not explicit, or as full and complete as the evidence would warrant. If it may be said that appellant was entitled to an instruction defining these phrases, his remedy was, at the proper time, to tender to and request the court to give one to that effect. He did not do so, and, as we construe the instructions given, they were substantially correct and hence he is not in a position to successfully except to them.Flatters v. State (1920), 189 Ind. 287, 127 N.E. 5;Jeffries v. State (1925), 195 Ind. 649, 146 N.E. 753; Bohan v. State (1923),194 Ind. 227, 141 N.E. 323.

On the point of sufficient evidence to support the verdict, we have already recited all of it most favorable to the state. It will thus be observed that the only evidence relative to transportation of liquor was that given by appellant himself. True, some one placed the liquor in appellant's woodshed, but there is no evidence that he placed it there or that he knew who did. We may infer from his reference to a machine that such an instrument was in the alley near his woodshed, and was used in connection with a new water line. There was no attempt to more fully develop that phase of his testimony. The word "machine" is exceedingly comprehensive, but its use in connection with a new water line would readily suggest a machine for tapping or calking a water line, or for use in digging or filling a ditch. The purposed use of the machine is not suggestive of an automobile or other instrumentality in use for conveying persons or property, and his statement "whether this stuff came from there or not" may as well have reference to the new water line as the machine. However, if it be conceded that the witness used the word "machine" as meaning an automobile, then we would have the witness saying, "there was an automobile out there used in that new water line." By omitting the asserted use of the machine or automobile, and assuming that the witness merely said, "There was a machine out there," might reasonably lead to an inference not at all justifiable when all of his testimony in that connection is considered.

Courts ought not to garble the statement of a witness in order to give it an inference plainly not intended by him. The evidence shows an old woodshed partly torn down, accessible to alley travelers and containing a quantity of whisky which appellant carried to and hid in his house, but there is no evidence whatever connecting him with any person theretofore in possession of this liquor. Whether the testimony of appellant be considered separately or the evidence as an entirety, the inference would not fairly follow that when appellant removed the liquor from his woodshed over twenty-five or thirty feet of his premises to his dwelling, he thereby, as a matter of law, assisted in its transportation. We may account for the verdict only upon the theory of an exceedingly restricted meaning of the word "transport." We thus meet the question — Is the verdict supported by sufficient evidence within the usual accepted meaning of the word "transport?"

The word "transport" is a derivative of the Latin word "transportare" — to carry over or across. Century Dictionary. To carry across, beyond. Universal Encyclopedia. To convey over, across. Stormonth's Dictionary. To carry across, through. Imperial Dictionary. However, the word "transport" is defined by Webster, to carry or convey from one place to another. It will be noticed that this court has heretofore used the Webster definition as expressing the meaning of the word "transport," as used in the statute defining the offense here charged. We have been unable to find a single authority approving a definition of the word "transport," as here used by the legislature, which would include the changing, moving or transferring of any item of personalty on a particular described area or tract of land by one in possession thereof, nor might we expect to find such a definition when the leading words in the phrase "from one place to another" are considered in the light of their well-understood meaning.

The word "place" is defined as "an area or portion of land marked off or regarded as marked off or separated from the rest, as by occupancy, use or character"; and the word "another" — different; distinct. Century Dictionary. "Place" — a portion of space regarded as separate from the rest of space; "Another" — not the same, different. Imperial Dictionary. "Place" — space occupied by or belonging to a thing under consideration; space regarded as abode or quarters. "Another" — not the same; distinct; different. Standard Dictionary. "Place" — any portion of space regarded as measured off or distinct from all other space or as appropriated to some definite object or use. "Another" — one more, in addition to a former number; a second or additional one; not the same; different. Webster's Dictionary.

Keeping in mind the foregoing definitions, and that statutes in derogation of the common law must be strictly construed, that is to say, by refusing to hold those not clearly brought 4-6. within their scope, and by refusing to discharge those who, but for refined distinctions or forced constructions, are plainly within their design (State v.Goodwin [1907], 169 Ind. 265), we are not prepared to say that the evidence in this case, which merely shows that appellant carried the liquor from his old partly dismantled woodshed into his dwelling, although he undertook to hide it there, is sufficient to bring him within the expressed legislative intention to make such act an offense. Hill v. State (1923), 96 Tex. Cr. App. 165, 256 S.W. 921. This conclusion compels a reversal of the judgment in this case.

Judgment reversed, with instructions that the court below sustain appellant's motion for a new trial, and for further proceedings not inconsistent with this opinion.

Ewbank, J., dissents with opinion.