182 Ind. 561 | Ind. | 1914
Appellant was charged by indictment with keeping a place where intoxicating liquors were sold in violation of law and having such liquors in his possession for such purpose. The charge was presented under §1 of the act of March 16, 1907, commonly called the “Blind Tiger” law. Acts 1907 p. 689, §8351 Burns 1914. The section of the act provides that any person who shall keep, run or operate a place where intoxicating liquors are sold, in violation of law, or shall be found in possession of such liquors, for such purpose, shall be deemed guilty of a misdemeanor. Appellant was tried by the court, and, from a judgment of conviction, prosecutes this appeal. His motion for a new trial, grounded on the insufficiency of the evidence, was overruled, and this action is the sole error assigned. The trial court was warranted in finding the following facts: The Order of Larks is a social, fraternal order, unincorporated, and Temple No. 1, of the order, with a membership of 150 men, is located at Portland, where the order originated; initiation fees, and dues, are paid by lodge members; this temple occupies a lodge room, billiard and assembly rooms, and parlor, comfortably furnished, and, in the rear of the billiard room, has a buffet in which there is a counter, and back bar, equipped with coils and faucets, and a beer cooler; a large quantity of beer was found in the above place by an officer who made a search, under a warrant issued for such purpose; appellant occupied the position of steward and janitor of the lodge, and he, and three members of a house committee, carried the only keys to the buffet; the beer in question was purchased by the house committee, with lodge funds, and similar purchases had been regularly made since the lodge was established; the plan of disposing of the beer was to sell tickets or coupons (to lodge members only), which were good in exchange for definite quantities of beer, and appellant, when present in the buffet, would deliver over the counter, to coupon holding members, such quantities of beer as might be desired, the members depositing coupons good for such quantities, ac
The evidence presents for consideration a single question, viz., Did the disposition of the beer, by the method in use, constitute a sale, within the prohibition of the statute? The Attorney-General concedes that when the beer was purchased, it belonged to the members of the temple, in common, hut contends that when a definite portion of the beer was delivered to a member in exchange for coupons or tickets, representing certain money values, the number of coupons or tickets surrendered depending on the quantity of beer received, according to a fixed schedule, the transaction constituted a sale. Appellant earnestly contends that a transaction of such character does not constitute a sale; that where liquors are owned in common by members of an unincorporated society, a division thereof among the members, by any system, cannot constitute a sale, because a person cannot sell his own property to himself. He cites Commonwealth v. Smith (1869), 102 Mass. 144, and cases from other jurisdictions, in support of the proposition.
The question here involved has been considered by most of the American state courts, and by various Federal ones. In the latter, transactions of the kind here under discussion,
The opinions of state courts are in irreconcilable conflict, but it is believed that the weight of authority favors the ,view of the Attorney-General. Whether the appellate court of a state, in any certain case, reached a logical conclusion has quite likely ceased to be a question of practical importance in such state, because, as a rule, subsequent amendment has relieved the statute of any need of interpretation. The decided cases of recent date, are collected and discussed in the monographic notes to the following eases: South Shore Country Club v. People (1907), 10 Ann. Cas. 386; State v. Colonial Club (1910), Ann. Cas. 1912 A 1088; Manning v. Canon City (1909), 23 L. R. A. (N. S.) 192; County of Ada v. Boise, etc., Club (1912), 38 L. R. A. (N. S.) 101.
Forty years ago this court considered and decided substantially the same question here presented, in Marmont v. State (1874), 48 Ind. 21. In that case, The Modock Club, of Indianapolis, was an unincorporated society, organized for educational, social and benevolent purposes, and held regular meetings every Sunday. Each Saturday the treasurer of the club purchased with club funds a keg of Cincinnati beer, and placed it in the club apartments. On the Sunday following any member of the club desiring it, got a glass of beer, drawn from the keg, on condition that he paid the treasurer five cents. The money received by the treasurer was deposited with club funds and used for purchasing beer and paying club expenses and sick benefits. The treasurer derived no profit from the beer transactions, but was convicted of
The above opinion has never been questioned nor overruled. It was followed in Haggard v. State (1901), 26 Ind. App. 695. It has been cited with approval by courts in other jurisdictions, in the following cases: People v. Soule (1889), 74 Mich. 250, 41 N. W. 908, 2 L. R. A. 494; State v. Horacek (1889), 41 Kan. 87, 21 Pac. 204, 3 L. R. A. 687; State v. Easton Social, etc., Club (1890), 73 Md. 97, 20 Atl. 783, 10 L. R. A. 64; State v. Boston Club (1893), 45 La. Ann. 585, 12 South. 985, 20 L. R. A. 185; People v. Law and Order Club (1903), 203 Ill. 127, 67 N. E. 855, 62 L. R. A. 884; County of Ada v. Boise, etc., Club (1912), 20 Idaho 421, 118 Pac. 1086, 38 L. R. A. (N. S.) 101; Manning v. Canon City (1909), 45 Colo. 571, 101 Pac. 978, 23 L. R. A. (N. S.) 192.
During the last forty years our General Assembly has enacted and reenacted many laws in relation to the sale of intoxicating liquors. In the reenacted ones the legislature doubtless adopted the court’s construction in Marmont v. State, supra. State v. Ensley (1912), 177 Ind. 483, 97 N. E. 113, Ann. Cas. 1914 D 1306. In other enactments it is probable that the General Assembly had in view the decision in that case in relation to what is required to constitute a sale of intoxicating liquors. Were we convinced that this court erred in its opinion in the Marmont case, we should hesitate to overrule it, because such action would probably thwart the legislative intent in some of the laws now in force relat? ing to the sale of intoxicating liquor. But we are not convinced that the conclusion is erroneous, notwithstanding some eminent courts have held otherwise. Commonwealth v. Pomphret (1884), 137 Mass. 564, 50 Am. Rep. 340; Barden v. Montana Club (1891), 10 Mont. 330, 25 Pac. 1042, 24 Am. St. 27, 11 L. R. A. 593; Koenig v. State (1894), 33 Tex. Cr. Rep. 367, 26 S. W. 835, 47 Am. St. 35. On the other hand we consider the reasoning sound in the Marmont opin
There is no error that warrants a reversa'!. Judgment affirmed.
Note. — Reported in 107 N. E. 78. As to limitations on the doctrine of stare decisis, see 27 Am. Dec. 631; 73 Am. St. 98. As to the applicability of liquor laws to social club dispensing liquors to members, see 12 L. R. A. (N. S.) 519; 20 L. R. A. (N. S.) 1095; 23 L. R. A. (N. S.) 192; 38 L. R. A. (N. S.) 101; 10 Ann. Cas. 386; Ann. Cas. 1912 A 1088. See, also, 23 Cyc. 205.