therein is erroneous, it will be presumed, not only that the same was corrected, or the defect therein supplied by other instructions given, and omitted from the record, but that the same was withdrawn, and the jury directed to disregard it, if such presumption is necessary to prevent a reversal of the

cause.

Applying the same reasoning to the case now before the court, the court must presume, nothing in the record affirmatively ap

221.

drew the oral instructions, claimed by appellant to have been given, and substituted therefor written instructions, and that, when

"Certain questions are sought to be presented as to instructions given and refused; but it does not appear from the bill of exceptions containing such instructions whether it contains all of the instructions in the case. As said in State v. Winstandley, 151 Ind. 495, 496, 51 N. E. 1054: 'When, in a criminal case, it is not affirmatively shown by the bill of exceptions that it contains all the instructions given by the court to the jury, this court must presume that such bill of exceptions does not contain all the instructions given. Cooper v. State, 120 Ind. 377, 383, 384, 22 N. E. 320. In such case, the presumption is that the substance of the instructions asked was embraced in the instructions given by the court, which are not contained in the bill of exceptions, and that, if any instructions given by the court and set out in the bill of exceptions are erroneous, they were corrected or withdrawn by other instructions given by the court, and not set forth in the record.'" Pence v. Waugh, 135 Ind. 143, 34 N. E. 860; Bd. of Com'rs of Jackson Co. v. Nichols, 139 Ind. 611, 38 N. E. 526; Musgrave v. State, 133 Ind. 297, 32 N. E. 885; Forsyth v. Wilcox, 143 Ind. 144, 41 N. E. 371.

In Robb v. State, 144 Ind. 569, 43 N. E 642, complaint was made of misconduct of the prosecuting attorney in his opening statement to the jury, and this court held that it would presume that the trial court, in its instructions, withdrew any such misstatements of a prejudicial character, and directed the jury to disregard them, for the reason that all the instructions given were not in the record. The court, in that case, at page 572 of 144 Ind., at page 643 of 43 N. E., said: "However, it is the duty of this court to indulge all reasonable presumptions in favor of the action of the trial court, and in doing so in this instance we must presume, the contrary not appearing, that the court in its charges to the jury withdrew any misstatements, of a prejudicial character, and directed the jury to

ignore them."

If the presumption in such a case is that the trial court withdrew the improper statements of the prosecuting attorney and directed the jury to disregard them, it certainly follows that, if the instructions are not all

2240, Burns' R. S. 1914, the court copied such section into its instructions and reread it, and that the indictment was copied into its written instructions as a part thereof. Judge Elliott, in his work on Appellate Procedure (section 709), says:

"If the appellate tribunal is compelled to resort to presumptions, it will choose that which sustains the proceedings of the trial court and reject that which would overthrow them. If the condition of the record is such as to require the higher court to act upon a presumption, it will without hesitation adopt the presumption that upholds the judgment from which the appeal is prosecuted."

In this case, the bill of exceptions failing to show affirmatively that the court did not comply with the written request of the parties that instructions be given in writing, we must presume that the trial court complied with the law in that particular. In the abtions containing the instructions not showsence of the evidence, and the bill of exceping affirmatively that it contained all the instructions given, no question is presented to this court on giving or refusing instructions. Hollon v. State, supra; State v. Winstandley, supra.

[5, 6] In his motion for a new trial, appellant says the verdict of the jury is contrary to law and the verdict of the jury is not sustained by the evidence; but, in the absence of the evidence, we cannot consider either of these alleged errors. Section 2165, Burns' R. S. 1914. Appellant alleges that the court erred in finding for the state on appellant's plea in abatement to the indictment, but he does not set out in his brief any copy of the alleged plea in abatement, or state the substance of it, and there is nothing in said brief to show what disposition was made of said plea. He does not

disclose whether it was disposed of by demurrer, or whether an issue of fact was formed and evidence heard. Under such circumstances, nothing is presented to this court for decision concerning said plea in abatement. The burden is on the appellant to show error in the record and proceedings

[7] Appellant contends that the court erred in entering a plea of "not guilty" for defendant, Stanley Bennett, when said de fendant stood mute in court, and in forcing said defendant to trial in said court without

first rendering judgment upon said defendant's plea in abatement and requiring defendant to plead over to said indictment. In this contention appellant is wrong. If a defendant stand mute or refuse to plead to an indictment or affidavit, a plea of not guilty must be entered by the court, and the trial proceed. Section 2072, Burns' R. S. 1914; Weaver v. State, 83 Ind. 289.

tends to show innocence and is vitiated thereby, and such words cannot be treated as surplusage, and such affidavit was properly quashed under provision of Burns' Ann. St. 1914, § 2065,

subd. 3.

(188 Ind. 359)

STATE v. SARLIN. (No. 23521.) (Supreme Court of Indiana. June 24, 1919.)

1. INTOXICATING LIQUORS 140 — KEEPING WITH INTENT TO SELL-CONSTRUCTION OF STATUTE-BONDED LIQUOR.

Burns' Ann. St. Supp. 1918, § 8356d (Acts 1917, c. 4, § 4), prohibiting the keeping of intoxicating liquor with intent to sell, is not intended to apply only to those having bonded liquor, but is general in its application.

W. G. Parry, of Winchester, for appellee.

TOWNSEND, J. Appellee was charged, under section 8356d, Burns' 1918 Supplement, section 4 of chapter 4 of Acts 1917, p. 15, with unlawfully keeping six pints of whisky with the intent to dispose of the same in violation of this section.

The trial court sustained appellee's motion to quash the affidavit, and the state appeals. [1, 2] So much of the affidavit as is necessary is as follows:

"Did then and there unlawfully keep and have in his possession intoxicating liquor, to wit, six (6) pints of whisky, with the intent to sell, barter, exchange, give away, furnish or otherwise dispose of the same or use within the state of

The trial court having sustained a motion to quash the affidavit, the Supreme Court must assume, even though no valid reason was presented by appellee, that the court knew a valid reason, and, if the Supreme Court can discover one, it will be bound to sustain the action of the lower court, which will not be presumed not to have taken notice of more than was presented by the motion sustained.

4. INDICTMENT AND INFORMATION 125(20) CHARGING OFFENSES CONJUNCTIVELY.

Where a statute declares it unlawful "to keep intoxicating liquor with intent to sell, barter, exchange, give away, furnish or otherwise dispose of the same," it is proper to charge that one did unlawfully keep with "intent to sell, * * furnish and otherwise dispose of the same," but not to charge disjunctively. 5. INDICTMENT AND INFORMATION 119-INTOXICATING LIQUORS 211-AFFIDAVIT SURPLUSAGE.

An affidavit or indictment under Burns' Ann. St. Supp. 1918, § 8356d, for unlawful keeping of intoxicating liquor with intent to

The affidavit then says that appellee was not the owner on April 2, 1918, was not a licensed pharmacist, wholesale druggist, manufacturing chemist, or the owner, manager, or operator of a public hospital or any person authorized by law to have intoxicating liquor in his possession.

We are not assisted by any brief from the appellee. We gather from the brief of the state and appellee's motion to quash that the only questions presented by appellee to the trial court were: (1) That section 4, supra, had to do alone with persons having liquor in bond on the 2d day of April, 1918; (2) that the affidavit was bad because the exception in the proviso of the act was not pleaded. The section is:

*

"That after the 2d day of April, 1918, it shall be unlawful for any person, to keep any intoxicating liquor, with the intent to sell, barter, exchange, give away, furnish or otherwise dispose of the same, except as in this act provided. Provided, however, it shall be lawful for any person who at the time of the taking effect of this act shall then be the owner of or in possession of spirituous, vinous or malt liquors previously manufactured in this state and which liquors, * shall then be under government bond in any bonded warehouse in this state, * to have, and keep in possession all such liquors until," etc.

The first part of this section is general in its application and makes it a crime for "any person to manufacture, sell, barter, exchange, give away, furnish or otherwise dispose of any intoxicating liquor, or to keep any intoxIcating liquor, with the intent to sell, barter, exchange, give away, furnish or otherwise dispose of the same," etc.

It will be seen that it was the intention of the pleader to charge appellee with keeping intoxicating liquor with the "intent to sell, etc." This is the second offense declared in the statute. This section of the statute is not intended to apply only to those having bonded liquor, but is to be general in its application. Therefore appellee's first contention in his motion to quash is erroneous. His second contention, that the exception contained in the proviso should have been pleaded, is also erroneous. Where an exception is in a proviso, or in a subsequent section of the statute, it need not be pleaded. Exceptions which are a part of the definition of the offense must be pleaded. Yazel v. State, 170 Ind. 535, 84 N. E. 972; State v. Paris, 179 Ind. 446, 101 N. E. 497.

[3] If the lower court had overruled this motion to quash and appellee were here questioning the correctness of that ruling, it would be proper for this court to sustain the ruling of the lower court on the theory that appellee had waived all objections to the affidavit except those pointed out; but, the court having sustained the motion to quash, we must assume, even though no valid reason was presented by appellee, that the court knew a valid reason, and, if we can discover one, it will be our duty to sustain the action of the lower court. It is not to be presumed that the trial court did not take notice of more than was presented by the motion which he sustained.

[4] Appellee is charged with keeping six pints of whisky "with the intent to sell, barter, exchange, give away, furnish or other wise dispose of the same or use within the state of Indiana, etc." It has been decided many times that it is sufficient to charge a crime in the language of the statute, but this statement of the law should not be taken literally. This does not mean that disjunctives in the statute may be used. The meaning of the statute must be gathered and the substantive words or their equivalents used. It has been repeatedly held by this court 123 N.E.-51 ·

that, where a statute declares that it shall be unlawful for a person to do this, or that, or that, it is sufficient to charge the several acts conjunctively, but it is not sufficient to charge them disjunctively because this renders the pleading uncertain. The defendant has a right to a direct and positive charge in order that he may plead and defend. Where a statute, as here, declares it unlawful "to keep intoxicating liquor with the intent to sell, barter, exchange, give away, furnish or otherwise dispose of the same," it is proper to charge that one did unlawfully keep with the intent to sell, barter, exchange, give away, furnish, "and" otherwise dispose of the same. That is to say, the state may charge conjunctively all of the acts following the intent. Davis v. State, 100 Ind. 154; State v. Stout, 112 Ind. 245, 13 N. E. 715; Fahnestock v. State, 102 Ind. 156, 1 N. E. 372; Regadanz v. State, 171 Ind. 387, 391, 86 N. E. 449.

[5] It will therefore be seen that the court was correct in sustaining the motion to quash this affidavit because it was bad for uncertainty.

It will also be observed that the affidavit ends the charging part with "or otherwise dispose of or use." If appellee were charged with unlawfully keeping six pints of whisky with the intent to "use" the same, this would not charge a crime; unless perchance he were one who came within the provisos of this section-a question not here and not decided. It certainly is not unlawful for one outside of those having liquor in bond, so far as section 4 of this statute is concerned, to "use" the liquor. "Use" is a broad word. He might drink it; he might serve it to his guests in his home. Now, ordinarily, surplus words do not vitiate an affidavit or indictment; but they do vitiate it when they show innocence. One of the grounds for quashing an affidavit or indictment is that it contains that which is a justification or a bar. Subdivision 3, § 2065, Burns 1914. Therefore this affidavit pleaded too much, and this cannot be treated as surplusage. It is neither in apposition to that which precedes, nor explanatory of it. We assume that the trial court saw these defects in this affidavit, and that its action was because of them.

The trial court was correct in sustaining the motion to quash, and the judgment is affirmed.