76 Ind. 333 | Ind. | 1881
This was a prosecution for retailing intoxicating liquor without license. The indictment charged that Matthias Klein, the appellant, “on the 15th day of October, A. D. 1880, at,” etc., “did then and there unlawfully sell one gill, and no more, of intoxicating liquor, to one John Brown, at and for the' price of five cents, said intoxicating liquor so sold then and there being a quantity less than one quart,” etc.
Upon the trial, John Brown, the prosecuting witness, testified as follows: ‘ ‘I am acquainted with the defendant, Matthias Klein. Some time in October, 1880, in the county of Lake and State of Indiana, I was at the defendant’s place of business, on an electioneering tour, and purchased some intoxicating liquors of him, in this way: I told him to set up the beer for the crowd, which he did. There must have been fifteen or twenty persons, who drank or smoked as;
This was all the evidence given in the cause, and upon this evidence the court found the defendant guilty as charged, and, over a motion for a new trial, challenging the sufficiency of the evidence, rendered a judgment against him in accordance with its finding.
The appellant insists that the evidence did not sustain the finding of the court; that it established but one sale of beer to Brown, and showed that to have been of a quantity much greater than a quart.
We can not agree to that construction of the evidence. The circumstances under which the sale was made entitled the appellant to charge Brown for each glass of beer furnished at the time at his request, and the fair inference, consequently, is, that Brown paid the appellant an aggregate sum made up of the price for each glass. The evidence must therefore be construed as having shown a series of sales to Brown of intoxicating liquor in quantities less than a quart at a time, each sale being a violation of the statute prohibiting such sales without a license authorizing the vendor to sell by retail.
But the appellant further insists that the charge in the indictment, that the sale was of one gill of intoxicating liquor, and no more, because descriptive of the offence charged, and that, as the evidence showed a sale in pint glasses, each glass containing a pint of beer, there was a fatal variance between the offence charged in the indictment and the one proved upon the trial.
The judgment is affirmed, with costs.