| Colo. | Jan 15, 1895
delivered the opinion of the court.
From the admitted fact of the selling and the uncontradicted evidence as to the character of the house and the kind of people frequenting the same and their condition as to insobriety while there, the jury were, in law, justified in finding therefrom as an inference the additional fact that tippling was indulged in upon the premises. But, in our view of the case, it was not necessary to show, in order to constitute the offense charged, that liquor was actually drunk upon the premises. The defendant himself concedes that as to this branch of the case the prosecution has made out the offense with the exception of proof that the place was a tippling house ; and that the only error of the court was in refusing the instruction asked by him. We think the evidence is sufficient to justify the verdict.
The defendant requested the court to give to the jjury the following instruction : “-The court instructs the jury that a tippling house is a public drinking place; a place where liquors or other intoxicating drink is sold, to be drank on the premises.” The definition embodied therein, is one that is found in many of the decisions; but we do not think it is the-only definition that can be formulated; neither do.we-consider it correct if it be construed as requiring that the liquor sold must be drunk on the premises.
In Koop v. The People, 47 Ill. 329, under a statute like ours, it is said: “ This offense is classed under- the head of offenses against the public morality, health, and police, and to constitute it, the actual sale of liquors, of any kind, on the Sabbath day or night, is not a requisite. The offense is in keeping a tippling house open on the- Sabbath day or night.
To this house of defendant the public had access. Defendant sold beer in small quantities to any person who called for it. He furnished to purchasers the opportunity to drink it on the premises. The actual sale, even, was not necessary to make out the offense, if the house was kept open for the purpose of sale to any customers who wanted to buy. Neither was it necessary, as appears from the foregoing case, to show that liquors sold were actually drunk upon the premises. The sale of liquor was made in small quantities, and the invitation and the opportunity for drinking the same were furnished by the defendant to purchaser's; and these facts, together with the fact that the house was kept open on the Sabbath day, were sufficient to convict.
It is undoubtedly true that if one keeps open on the Sabbath day a public house where intoxicating liquors are sold in small quantities and drunk on the premises, he violates the statute. We think it is equally true, and so hold, that he is equally guilty under the statute who keeps open on the Sabbath day a public house where liquor is habituallysold in small quantities and delivered on the premises in open vessels, so that facilities are furnished to those buying the liquor of drinking.the same in such house if they so desire. • The evil intended to be prohibited by this statute consists in keeping open a public house where liquor is sold in small quantities, and the opportunity is given to purchasers to drink it on the premises; and if customers are so considerate as to buy liquor, but not actually to drink it in the house where it is sold, the owner of the house has, violated the statute by keeping open the place and furnishing every facility to, and permitting, the buyer to drink on the premises if he sees fit to do so. This forbearance of the purchaser ought not to shield the seller from the consequences of his acts, as they are all which, in
The court of its own motion substantially instructed the jury in accordance with the views which we have herein above expressed, and so, even though the instruction asked contained a proper definition, in part at least, of a tippling house, the instructions as given likewise substantially gave to the jury a definition equally comprehensive and equally correct. In this there was no prejudicial error.
At the trial it was discovered that the true name of the defendant was Isaac Harris, instead of Charles Harris, and the court ordered, without the consent of the defendant, that his true name be inserted in the record in accordance with the fact. It does not clearly appear how it was ascertained by the court that the defendant had been indicted under a wrong name. A plea in abatement was the proper way for the defendant to take advantage of the misnomer. Such a plea, however, was not interposed, nor was any exception taken to the ruling of the court in so changing the name of defendant. But if a plea in abatement on the ground of misnomer had been interposed by defendant, and the fact ascertained by the court that the defendant was indicted under a wrong name, the indictment should not have been quashed, nor the prosecution abated. The true name, as set forth in the plea, should be entered of record by the clerk upon the order of the court, and the cause should proceed as though the indictment contained the correct name of the accused. General Statutes (1883), sec. 997; Mills’ An. Stats., sec. 1503. This statute expressly permitting this change to be made, there was no error of the court in ordering the true name of defendant to be entered of record.
It follows that the judgment of the court of appeals should be affirmed.
Affirmed.