171 Ind. 387 | Ind. | 1908
Omitting its formal parts, .the. affidavit herein, punctuated as it appears in the record, is as follows: “That Charles Regadanz on the 23d day of March, A. D. 1907, at.and in said county aforesaid, was then and there unlawfully found in possession of intoxicating liquors, which intoxicating liquors were kept for the purpose of being sold by said Charles Regadanz, he, said Charles Regadanz, not then and there having a license to sell intoxicating liquors, in less quantities than five gallons, according to the laws of such State, contrary, ’ ’ etc. After unsuccessfully moving to quash, appellant entered his plea of not guilty, and the result of the trial was a verdict and judgment in favor of the State. The judgment was rendered February 15, 1908, and on the same day appellant’s motion for a new trial was overruled. Five days later the prosecuting attorney filed a petition praying “that the intoxicating liquors in the above-entitled cause [The State of Indiana v. Charles Regadanz], in the possession of the sheriff, be by this court ordered destroyed according to section fourteen of the blind tiger law. ’ ’ (Acts 1907, p. 27, §8350 Burns 1908.) The petition was sustained; whereupon a judgment for the destruction of the property followed. The second and fourth assignments of error call for a review of the action of the court in overruling the motion to quash and in ordering the destruction , of the liquors.
It may be, as the Attorney-General argues, that there is no such thing as -a license issued under the laws of the State under which sales are confined to quantities of less than five gallons, yet the pleader evidently thought that there was, while the fact might have been that appellant was a licensed druggist, and as such was entitled to sell under the provisions of §§8351, 8352 Burns 1908, Acts 1907, p. 689.
The judgments are reversed, and the court is ordered to quash the affidavit on which appellant was convicted.