171 Ind. 428 | Ind. | 1908
Appellant appeals from a judgment of conviction based on an affidavit which charges that “R. Bruce Barnhardt, on the 9th day of March, A. D. 1907, at and in the county of Randolph and State of Indiana, was then and
Error is assigned based on the overruling of a motion to quash.
We assume that the effort of the prosecuting attorney was to charge a violation of section one of the act of 1907 (Acts 1907, p. 27, §8337 Burns 1908). In part that section reads as follows: “And any person who shall keep, run or operate a place where intoxicating liquors are sold, bartered or given away in violation of the laws of the State, or any person who shall be found in possession of such liquors for such purpose shall be deemed guilty of a misdemeanor,” etc.
We are of opinion, however, that the affidavit will not ad- ■ mit of an analysis under which it would charge sufficient facts upon either view. As to the first, it does not appear that there was any keeping, running or operating of a place where such liquors were sold, bartered or given away, but a possession of a building in which there were intoxicating liquors with a purpose (which, of course, refers to the future) to sell, barter and give away intoxicating liquors, which might not be those referred to as possessed. As to the second theory, since the word “unlawfully” is not sufficient to show that the possession was in violation of law (Regadanz v. State, supra), there is averred only the fact that appellant had possession of the liquors in a building which he had possession of for the purpose of keeping, running and operating a place where intoxicating liquors (not necessarily those described) were to be sold, bartered and given away in violation of the laws of the State.
Neither by the reading of the charge as set out, nor by any process of transposition, can a criminal charge be evolved from the affidavit. On either theory there is m> charge that there was a keeping, running or operating of a place where intoxicating liquors were sold, bartered or given away, or that the particular intoxicating liquors possessed were to be sold, bartered or given away. In other words, appellant may have been possessed of the place with a purpose of thereafter conducting a liquor business therein, and he may have been possessed of the particular liquors for
Judgment reversed, with direction to quash the affidavit.