On thе 1st day of August, 1877, an affidavit was filed before a justice of the peace of Knox county, Indiana, in which it was charged, that the appellant, “James Dowdell, on or about the 29th day of July, 1877,
The appellant, on arraignment before the justice, pleaded that he was not guilty as charged; and, upon a trial of the cause, the justice found him guilty, and adjudged that he pay a fine to the State, and the costs of suit.
On appeal from the justice’s judgmеnt, the cause was tried by a jury in the court below, and a verdict was returned, finding the appellant guilty as charged, and assessing his fine at ten dollars. Appellant’s written motion for a new trial was overruled, and his exception was saved to this decision, and, his written motion in arrest of judgment having beеn overruled, he also excepted to this decision. And the court below rendered judgment on the verdict, from which judgment this appeal is now hеre prosecuted.
In this court the appellant has assigned, as errors, the decisions of the court below, in overruling his motion for a new trial, and his motion in arrest of j udgment.
The evidence on the trial, in the court below, is not in the record, and the appellant’s learned attorneys do not claim in argument, in this court, that any error was committed in overruling the motion for a new trial. The error assigned on this ruling is therefore waived.
Did the court below err in overruling the appellant’s motion in arrest of judgment? This is the only question presented by appellant’s counsel, in argument, fоr our consideration. The motion in arrest was in writing, and the cause assigned therein for the arrest of judgment was as follows: “That the facts stated in thе affidavit, on which this prosecution is based, are not sufficient to constitute a public offence.”
It is manifest, we think, on the face of the affidavit in
This section reads as follows:
“ Sec. 9. A license granted under the provisions of this act shall not authorize the person so licensed to sell or barter any intoxicating, vinous оr malt liquors on Sunday, nor upon any legal holiday, nor upon the day of any State, county, township or municipal election in the township, town оr city where the same may be holden, nor between the hours of 11 p. m. and 5 a. m., and upon conviction thereof he shall be deemed guilty of а misdemeanor, and be fined in any sum not less than ten, nor more than fifty dollars, and for a second conviction he shall forfeit his license, which shall be a part of the judgment of the court trying the same.” 1 R. S. 1876, p. 871.
This section has never been repealed, in express terms. It is insisted, however, by apрellant’s counsel, that, in so far as the offence with which the appellant is charged is concerned, the section cited has beеn virtually repealed and superseded by the provisions of the 1st section of “An act to prohibit the sale of spirituous, vinous, and malt, and othеr intoxicating liquors on Sunday,” etc., approved March 5th, 1877.
Omitting the enacting clause, this 1st section reads as follows:
“ That it shall be unlawful for any person to sell, barter, or give away, to be drank as a beverage, any spirituous, vinous, malt, or other intoxicating liquors on Sunday, the Fourth Day of J uly,the first dаy of January, and the twenty-fifth day of December, commonly called Christmas, and Thanksgiving day, as designated by proclamation of the Governor of the State, or President of the United States, or upon the day of any State, county, township, primary
There was no emergency clause or section in this act; but it appеars from the Governor’s proclamation, of which we are required to take judicial notice, that the act had been published and сirculated, by authority, in all the counties of this State, on the 2d day of July, 1877, on which day, therefore, the act took effect and has been sincе a law of this State. It was the law on the 29th day of July, 1877, on which day the appellant is charged to have committed the misdemeanor for which hе is prosecuted in this ease.
An important, and, in fact, the controlling, question in this cause, therefore, may be thus stated:
Did this 1st section, of the aсt of March 5th, 1877, repeal the said 9th section of the* act of March 17th, 1875?
If this question must be answered in the affirmative, then the affidavit, in this casev was insuffiсient, in this, that it did not charge that the intoxicating liquor was sold “to be drank as a beverage,” and the motion in arrest of judgment should have been sustained. But, if this question can be answered in the negative, then the affidavit was sufficient, and no error was committed by the court below, in overruling the motion in arrest of judgment.
From a comparison of these two sections, before cited, it will be readily seen, that the 1st section of the later aсt covers the whole subject-matter of the 9th section of the older act, that it is more specific and certain in its provisions, and that it рrescribes different penalties for
This rule of construction was cited with approval by this court, in the case of The President, etc., of the P. & I. R. R. Co v. Bradshaw,
In our opinion, the act of March 5th, 1877, before cited, being the latest expression of the legislative will on the subject-matter thereof, repeals by implication, and entirely supersedes, the said 9th section of the- act of March 17th, 1875,before cited, on the same subject-matter; and therefore we hold, that the court below erred, in overruling the appellant’s motion in arrest of judgment.
The judgment is reversed, and the cause remanded, with instructions to sustain the appellant’s motion in' arrest of judgment.