187 Ind. 32 | Ind. | 1918
— Appellant was convicted in the trial court on an indictment charging him with having unlawfully kept, run and operated a place where intoxicating liquors were bartered, sold and given away in violation of §1 of an act in force March 16, 1907. Acts 1907 p. 689, §8351 Burns 1914. The overruling of appellant’s motion for a new trial is the only error assigned, and the only errors presented by the briefs relate to the action of the trial court in giving instructions to the jury, alleged to be erroneous, and in refusing to give instruction No. 1 tendered by appellant.
As shown by the evidence, appellant held a license for the sale of intoxicating liquor for a room located on the first floor of a building in Indianapolis, Indiana, known as the Plaza Hotel, and he operated a'bar in the room covered by the license. On the top floor of the building was a cafe and roof garden. Appellant rented the room in which the bar was operated and also the cafe and roof-garden rooms paying as rent therefor $200 a month. The evidence of appellant himself shows that intoxicating liquors procured at his bar were served and consumed with his knowledge and consent in the cafe conducted on the roof garden. -
The theory of the state is that appellant was keeping, running and operating the place designated as the Plaza Cafe and Roof Garden on December 23, 1916, and that intoxicating liquors were sold there in violation of law. The theory of the defendant is that no intoxicating liquors were sold in the cafe, but that they were sold in the licensed barroom of appellant to waiters from the
A careful examination of the other instructions given
Note. — Reported in 118 N. E. 307. Intoxicating liquors: (a) criminal liability for violation of law by partner, servant, agent, etc., 41 L. R. A. 660, 16 L. R. A. (N. S.) 786, 20 L. R. A. (N. S.) 321, 33 L. R. A. (N. S.) 419; (b) place of sale, 44 L. R. A. (N. S.) 435. See under (2) 12 Cyc 928.