33 Ind. App. 8 | Ind. Ct. App. | 1904
In the indictment in this case it was charged that the appellant, John W. Atkinson, late of, etc., on, etc., at, etc., “being then and there the holder of a license issued under the laws of the State of Indiana to sell intoxicating liquors at retail in quantities of less than a quart, in said county, and being then and there engaged, as the owner and proprietor, in the sale of said intoxicating liquors, under and by virtue of the license and authority aforesaid, in a certain storeroom then, and there being, did then and there unlawfully permit” eight persons named, “who were not then and there members of his family, to go and enter into said room where intoxicating liquors were then and there sold as aforesaid, the
It is assigned as error that this indictment does not state facts sufficient to constitute a public offense.
The objections urged against the indictment are, (1) that the words “at a time” are not inserted after the words, “being then and there the holder of a license issued under the laws of the State of Indiana to sell intoxicating liquors at retail in quantities of less than a quart;” (2) that the indictment does not show that the liquors were sold in a room where a license could lawfully be granted, or that the license covered a room wherein intoxicating liquors could be sold by virtue of a license. An indictment may be thus attacked by the defendant for the first time on appeal, but such attack will not prevail except where there is an omission in the indictment of some criminal charge; and mere want of certainty in the statement of the facts constituting an offense can not be ground for so questioning the indictment. Such an assignment will not prevail if a public offense be charged against the defendant, though there be such want of specific certainty in the charge that the indictment would be insufficient on motion to quash. State v. Noland, 29 Ind. 212; Stewart v. State, 113 Ind. 505; Elliott, App. Proc., §488.
To avoid prolixity, general pleading is allowed in all cases where the subject comprehends a multiplicity of matters and a great variety of facts (Shinn v. State, 68 Ind. 423); and it is a general rule, that in defining a criminal offense in an indictment it is sufficient to charge the statutory offense in the language of the statute, or in terms substantially equivalent thereto. State v. Beach, 147 Ind. 74, 36 L. R. A. 179; Chandler v. State, 141 Ind. 106; Lay v. State, 12 Ind. App. 362; State v. Allen, 12 Ind. App. 528.
It is expressly enacted that no indictment or information shall be deemed invalid, nor shall the same be set
The proceeding is based upon §7283c Burns 1901, by which it is provided as follows: “Any room where spirituous, vinous, malt or. other intoxicating liquors are sold by virtue of a license under the laws of the State of Indiana, shall be so arranged that the same may be securely closed and locked, and admission thereto prevented, and the same shall be securely locked and all persons excluded therefrom on all days and hours upon which the sale of such liquors is prohibited by law. It is hereby made unlawful for the proprietor of such a place and the business herein contemplated of selling intoxicating liquors, to permit any person or persons other than himself and family to go into such room and place where intoxicating liquors. are so sold upon such days and hours when the sale of such liquors is prohibited by law,” etc. The punishment to be inflicted for a violation of this section is prescribed in the next following section. Sunday is one of the days upon which the sale of intoxicating liquors is prohibited by law. §2194 Burns 1901. The indictment, we think, sufficiently charged the offense described in §7283c, supra.
The cause was tried by the court, and the overruling of the appellant’s motion for a new trial is assigned as error, and it is claimed in his behalf that the evidence was insufficient to uphold the conviction. The dispute relates to the evidence concerning the place into which the persons named in the indictment, other than the appellant and his family, were permitted to go on the day designated. The saloon was on the ground floor of a two-story brick
The evidence showed that all the persons mentioned in the indictment as being present on the Sunday in question were on that day in the portion of the room behind the partition, one of them being the appellant’s barkeeper, and that a part of the time another of his barkeepers also was there, when a number of the persons named in the indictment, other than the appellant'or members of his family, were present. The ages of those present, other than the
The appellant’s apjflication for license, the published notice thereof, and the order of the county board granting the license, were introduced in evidence. In all of them there was a description by metes and bounds of the real estate or lot on which the building in question was located, and in each of them, the premises on which the intoxicating liquors were to be sold wore designated as the north room on the ground floor of the two-story brick building situated on said real estate described, and said room was in each of said papers described by metes and bounds indicating a depth of twenty-eight feet and six inches, and a width in part of seventeen feet and in part of nineteen feet and four inches. The order for a license contained also the following language: “Said room fronts on High street in said town, and is entered therefrom by means
We must make some reference to the statutes relating to the place where intoxicating liquors may be sold under license, so far as they seem to affect the question for decision. The person desiring to obtain the license must publish “a notice stating the precise location of the premises in which he desires to sell.” §7278 Burns 1901. The county auditor is to “issue a license to the applicant for the sale of such liquors as he applied for, with the privilege of permitting the same to be drunk on the premises as stated in the aforesaid notice, which license shall specify the name of the applicant, the place of salé, and the period of time for which such license is granted.” §7283 Burns 1901. The person applying for license, in the application, must specifically describe the room in which he desires to sell such liquors, and the exact location of the same, and, if there is more than one room in the building in which such liquors are intended to be sold, said applicant
It seems to be the intent of the statutes now in force that the place, and premises contemplated therein for the selling of intoxicating liquors in less quantities than a quart at a time, with the privilege of permitting the drinking thereof on the premises, under and by virtue of a license, must be one single room, which may be viewed throughout its entire extent or space by a person looking
So far as the place of selling is concerned, it is not necessary in the notice (the statutory provision for which has not been changed since the year 1875) to state more than the precise location of the premises; and the license must be for the sale of liquors with the privilege of permitting them to be drunk on the premises, as stated in the notice, and must specify the place .of sale; and in the application the particular room and its exact location must be specifically described.
There are numerous requirements as to what the holder of a license must do with reference to the room and the business, as to which the statutes do not expressly require that reference be made in the application, notice, or license, if we except the matter of carrying on some other kind of business in the room. See Gates v. Haw, 150 Ind. 370. Here there seems to have been an attempt to evade the statutes by inserting in the application and notice a description of the room by metes and bounds, and procuring such description in the order of the board, with other unneces
It is true that the appellant could not properly be convicted of one statutory offense for’ conduct which did not constitute such particular offense, though it may have furnished ground for prosecution under another statute; yet, if his conduct constitute an offense for which he is prosecuted, he can derive no .benefit from its being also an offense for which he is not prosecuted; and we must seek to uphold and enforce the intention of the legislature, and not permit evasion of the law by subterfuge. The appellant was carrying on the business of a saloon keeper under and by virtue of a license containing, unnecessarily and by his procurement, a description by metes and bounds of the room, being a false description of the premises in which the business was conducted. During the week the prohibited pool-room was a part of his saloon behind a prohibited partition. It did not cease to be a part of the room in which he was licensed to sell by the locking of the partition doors on Sunday. Though it be merely incidental to the offense, yet, having arrived at such a conclusion, we may not improperly say that subjecting immature persons to temptation, and thereby inducing them to countenance such viola
Judgment affirmed.