73 Ind. 39 | Ind. | 1880
— Prosecution against appellant for permitting a minor to play a game of billiards upon a billiard table, of which appellant is alleged to have been the owner and manager.
It is argued by the appellant that the information is insufficient because it does not aver that the appellant was the owner, or had the care or management, of the table upon which the game was played. The allegation upon this point is as follows : “Which said billiard table he, the said Marshall Hipes, then and there being the owner of, and then and there having the care, control and.management of.” We think this is sufficient. . The allegation is not, as counsel assert, a mere recital. It is a direct charge that the appellant was the owner of the table upon which the minor was allowed to play.
It is contended by appellant’s counsel, that the affidavit upon which the information is based is insufficient because not attested by a seal. The jurat is as follows: “Subscribed and sworn to before me, this 22d day of January, 1880. John S. Hedges, clerk.” We think that we are bound to presume that the affidavit ivas sworn to before the clerk of the Henry Circuit Court. The court ex officio takes notice of its officers and their signatures, and we must presume that the Henry Circuit Court did take notice that John S. Hedges was its clerk, and that the signature attesting the affidavit was his. Brooster v. The State, 15 Ind. 190 ; Buell v. The State, 72 Ind. 523.
Error is assigned upon the ruling denying the appellant’s motion for a new trial, and this assignment and counsel’s ar
The court, however, on its own-motion, gave the following instruction: “This is a criminal prosecution, and to entitle the State to a conviction of the defendant, his guilt must have been proved, as charged in the information, beyond a reasonable doubt. The material averments of the information are, that the defendant, Marshall Hipes, at the county of Henry and State of Indiana, at some time within the two years immediately preceding the commencement of this prosecution, was the owner of, or had the care, management or control of a billiard table, and then and there being such owner, or having such control, management or care, suffered William Kinsey to play a game of billiards on said table with one James Sisemore, and that the said William Kinsey was a minor, under the age of twenty-one years. If you have a reasonable doubt of any one of these material averments, you must acquit the defendant.”
The State insists that the instruction given by the court embraces that asked by the appellant, and that there was, therefore, no error in refusing it, even if correct and relevant. This position is untenable. The appellant had a right to ask a more specific instruction than the general one given by the court. It was his right to have a specific instruction, applying to the facts, of the particular case as developed by the evidence.
We are, therefore, required to determine whether the ap
Appellant also complains of the refusal to give the first instruction asked by him, but there was no error in this ruling, because the instruction given by the court fully covered that asked by the appellant.
The evidence fairly supports the verdict. It impresses us, as it doubtless did the jury, that the defence ivas an attempt, to evade the law by proving appellant’s wife to be the owner
Judgment affirmed, at costs of appellant.