COMMENTS ON CRIMINAL CASES INVOLVING QUESTIONS OF PUBLIC INTEREST AND ESTABLISHING NEW PRECEDENTS.

In Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. The State, 172 Ind. 147, the full train crew law of 1907 (Acts 1907, p. 18,) was upheld, and it was held that the State under its police power had a right to safeguard passengers and employes on trains by compelling railroad companies to provide sufficient crews therefor, even though extra expense to the companies be necessary to do so, and that the above act is not invalid, as to a train carrying the United States mail, on the ground that Congress has the exclusive right to regulate post-offices and post-roads, and to legislate regarding interstate commerce.

In the case of Rose et al. v. The State, 171 Ind. 662, it was held that where intoxicating liquors were seized under the provisions of the blind tiger law, Acts 1907, p. 27, the proceedings to destroy are civil and not criminal in character, and that the Legislature had the power to prescribe what shall constitute prima facie evidence of certain facts in such cases, and that the act was valid, and since it provided for a notice to the owner and a judicial hearing, it provided for due process of law. The decision is valuable to prosecuting officers, since it prescribes what kind of notice is required before the destruction of such seized liquors.

It was held in the case of Strickland v. The State, 171 Ind. 642, construing the Beardsley Law (Acts 1907, p. 689), that where a druggist upon proper notice refuses to produce at the trial the application for the purchase of intoxicating liquor, the Court is unable to compel its production, but that oral evidence thereof is admissible.

In the State v. Barrett, 172 Ind. 169, it was held that the act of 1907 (Acts 1907, p. 334,) requiring all coal mine operators to construct entries with two-foot spaces on each side of the tracks therein was constitutional. that the general assembly had the right under the police power, for the protection of the health and safety of citizens, to regulate the use of private property.

It was held in the case of State v. Pence, 89 N. E. 488, that since the second section of the Beardsley Law (Acts 1907, p. 689) did not authorize police inspection of the prescriptions and applications required to be kept by druggists after sales of liquors made

thereon, or that they should be filed in a public office, they are merely private documents, and that an indictment of a druggist founded on his prescriptions and applications which he was by the Court compelled to produce against his will, could not be sustained because in violation of the constitutional guaranty protecting an accused person from being required to give evidence against himself.

In the case of McPherson v. State, 90 N. E. 610, it was held that the county local option law (Act of Special Session 1908, p. 5) was constitutional.

Skelton v. State, 89 N. E. 860, and 90 N. E. 897, was a case where the defendant was charged with selling six gallons of beer without a license so to do, and it was held that a wholesaler described in the blind tiger act (Acts 1907, p. 27), and the Beardsley Law (Acts 1907, p. 689), had no authority to sell intoxicating liquor in any quantities at any time to a consumer, but that such wholesaler could only legally sell such liquors to three classes of persons, namely, (1) other wholesalers, (2) licensed retail dealers, or (3) to druggists or pharmacists, who are licensed as such by the State. Board of Pharmacy. It was thus decided that brewers or other wholesale dealers in intoxicating liquors can not legally sell their product direct to consumers.

The Supreme Court in construing the Act of 1907 (Acts 1907, p. 447), authorizing circuit and criminal courts to suspend sentences in certain cases, held in the case of The State v. Smith, 90 N. E. 607, that such courts are authorized to suspend sentence only as a part of the judgment in the case, and that they were not authorized to suspend sentence and parole persons after the rendition of final judgment, and that an order suspending the collection of a fine made after the entry of final judgment of conviction is erroneous.

In the case of Ryan v. State, 92 N. E. 340, it was, for the first time, held by the Supreme Court that the application or prescription upon which a licensed pharmacist might sell intoxicating liquor for certain named purposes as prescribed in Section Two of the Beardsley Law (Act 1907, p. 689) must be wholly written, and not printed, and that an application to a druggist to sell liquor not written (but partly printed), dated and signed by the applicant in his correct name, instead of a written one, and stating that the liquor was desired for "medical, scientific or educational purposes

only," instead of specifying the particular purpose, is no defense to a prosecution for making the sale.

In Campbell v. State, 171 Ind. 702, the search and seizure provisions of the Acts of 1907, page 27, in liquor cases, were held to be in the nature of a libel, and distinct from the criminal offense prescribed by the act; that one who appears as a claimant can not object to the defects in or omission of notice; that it is a statutory proceeding governed by the rules of civil actions; that the Court acquires jurisdiction of the subject-matter by the filing of the proper complaint and seizure of the liquors; that no trial by jury had to be provided to rescue the statute from unconstitutionality, and that as a preponderance of the evidence only was required, if there was no evidence in defense, a prima facie case would be sufficient. It was held that the taxing of a fee for the prosecuting attorney was erroneous.

In State v. Ferris, 171 Ind. 562, it was held that the giving of a post-dated check for goods purchased, accompanied by a statement that a part of the amount of said check was at the time in the bank and that the giver would have the remainder therein on the date of the check, does not constitute a false pretense.

In Ward v. State, 171 Ind. 565, it was held that the right to new trial in criminal cases is statutory and not required by the constitution, and must be exercised upon the terms of the statute, and that courts have no power to extend time for filing such motion, which must be filed within thirty (30) days of the date of the verdict. In this case there had been filed a motion for a new trial, a first and a second substituted motion for a new trial, the latter after leave granted to withdraw the former.

In State v. Collier, 171 Ind. 606, it was held that the township trustee can not properly be convicted for a violation of Section 7779 Burns' Revised Statutes 1908, for failure to keep a rural route highway in repair, where the Board of County Commissioners shall have made no provision for the repair of such highway.

In State v. Trook, 172 Ind. 558, it was held that in a prosecution for a subornation of perjury in making a verification required by the statute under the provisions concerning reports in the private banking law, it must appear that such bank was one transacting business under the act, and it must also appear that the suborner knew that the perjurer knew that he was taking a false oath.

In Carter v. State, 172 Ind. 227, the Supreme Court departed from the doctrine of Stone v. State, 30 Ind. 115, and in effect held that where an indictment charges the commission of a crime by means unknown to the grand jury or the name of a person unknown to the grand jury, and it does not appear one way or the other in the evidence, whether the grand jury did or did not in fact have the knowledge, the presumption is that they had no such knowledge. In other words, that there is no burden on the State to disprove knowledge on the part of the grand jury in the absence of evidence to the contrary. This is a very important point of practice, and liberalizes the Indiana procedure in this respect in accord with that followed by the federal courts and the courts of nearly all of the states. The contrary practice has obtained, at least in parts of Indiana, since the ruling in the Stone case. It was in following the Stone case that the motion for a new trial in the Whitecap case, tried by your attorney-general at Columbus, Indiana, and resulting in a conviction of part of the defendants was sustained, and the law gives the State of Indiana no remedy for error in that event. I am glad to be able to report the final proper declaration of this principle, which is frequently of great importance.

In Brunaugh v. State, 90 N. E. 1019, it was held that it is a crime to present a false claim to the board of public works of a city, and that such board is an accounting officer within the statute; that the State is entitled to have the jury instructed upon any legitimate view of the evidence, irrespective of its strength; that the crime of presenting a false claim can be committed through an innocent agent, it not being necessary that the accused should either make or present the claim in person; that the State is entitled to argue different theories of guilt; that the jury may draw its own conclusions from the evidence though they differ from the theory of the accused or the State.

In Melville v. State, 89 N. E. 490, it was held that efforts to obtain a medical license do not constitute a defense.

In Dotterer v. State, 172 Ind. 357, it was held that a witness may be asked on cross-examination whether he had been convicted of a certain offense, the record thereof being inadmissible as evidence in chief, being collateral; and that under the liquor laws a policeman has the right to inspect saloons when the owner is present therein at times when sales are prohibited by law, and if he be forcibly ejected by the saloon keeper, it is assault and battery.