STATE of Indiana, Appellant (Plaintiff below), v. Homer CULP and Rex Bouse, Appellees (Defendants below).
No. 2-981A330.
Court of Appeals of Indiana, Second District.
April 12, 1982.
433 N.E.2d 823
On appeal the father raises two contentions. First he asserts without citation of authority or cogent argument that it would be inequitable to permit the wife to be awarded attorney fees concerning the proceedings before this court to secure a stay of the change in custody pending outcome of the appeal. The asserted reason is that we granted the stay.
Secondly, relying upon Becker v. Becker (1966), 141 Ind. App. 562, 216 N.E.2d 849 and Bitner v. Bitner (1950), 228 Ind. 259, 91 N.E.2d 169, he urges that the court abused its discretion by awarding attorney fees in the absence of a showing that the mother had neither funds nor credit sufficient to pay her attorneys. We reject both contentions.
The marriage dissolution act, which was enacted after the cases cited by appellant, broadened the authority of the courts to award attorney fees.
“The court from time to time may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for attorneys’ fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceedings or after entry of judgment. The court may order the amount to be paid directly to the attorney, who may enforce the order in his name.”
Under the statute it is not error per se to make an award to a non-prevailing party or for a particular proceeding in which the party did not prevail.
The Becker and Bitner cases concerned awarding attorney fees pendente lite under our prior divorce statute which permitted such awards “as will insure to the wife an efficient preparation of her case.” See
The appellant has not presented us with a factual argument contending that the court abused its discretion upon the evidence adduced at the hearing. Therefore, we need not consider that issue, and we hold that no abuse of discretion has been shown. See Johnson, supra.
No reversible error has been established. The decision of the trial court is affirmed.
HOFFMAN, P. J., and STATON, J., concur.
David A. Feeback, Edris, Brown & Johnson, Bluffton, for appellees.
SHIELDS, Judge.
The State of Indiana (State) appeals pursuant to
We affirm.
On February 17, 1981 several police officers were summoned to a disturbance at an apartment house in Bluffton, Indiana. When the officers arrived at the scene they observed two tenants, Culp and Bouse, inside the apartment house seated near the top of a stairway leading to the second floor of the building. Both men were belligerent and appeared intoxicated. They were eventually placed under arrest for public intoxication.2
At a trial before the court Culp and Bouse were found guilty of public intoxication and duly sentenced. A motion to correct errors followed. After a hearing the trial court granted the motion, vacated the judgment of conviction, and entered a finding of not guilty and judgment of acquittal for both charges of public intoxication. In granting the motion the trial court concluded Culp and Bouse, while intoxicated, were not in a “public place or place of public resort” within the meaning of
The sole issue presented on appeal is whether the enclosed common hallway and stairway area of an apartment house is a “public place or place of public resort” within the meaning of our public intoxication statute.3 This is a matter of first impression in this jurisdiction.
“The purpose of the law is to protect the public from the annoyances and deleterious effects which may and do occur because of the presence of persons who are in an intoxicated condition.”
The State also relies upon Heichelbech v. State, (1972) 258 Ind. 334, 281 N.E.2d 102, where the supreme court held, albeit in dicta, an automobile service station is a business establishment open to the public and, although private property, it is a public place as contemplated within the statute.
We acknowledge in certain instances private property may qualify as a “public place or place of public resort.” A business establishment, for example, which impliedly invites consumers to enter upon its premises may, under proper circumstances, be a “public place” within the ambit of the statute. Nevertheless, the weight of authority in Indiana leads to the inexorable conclusion the enclosed common areas of an apartment dwelling are not public areas or places of public resort within the meaning of our public intoxication statute.4
It is well established in this state that a private residence, including the private grounds directly outside of it, is not a public place. State v. Sowers, (1876) 52 Ind. 311; Cornell v. State, (1980) Ind.App., 398 N.E.2d 1333, 1339 (Buchanan, C. J. dissenting opinion) (front yard of a private residence is not a public place). Nor does a
“A private residence is not a public place, in any sense of the term, and the mere suggestion of the fact is a sufficient argument to support it. We are unable to see how a private residence can be made a public place by a number of persons in the neighborhood gathering there, with or without invitation, to pass an evening in social intercourse and innocent amusement. Whether a place is public or not cannot be determined by the number of people who may gather there for some legitimate purpose, but by the place itself. Nor can it be determined by people freely and voluntarily congregating at their own pleasure, or by the invitation of others.”
State v. Tincher, (1898) 21 Ind.App. 142, 51 N.E. 943. In addition, it has been held that a private road or way owned by a private corporation is not a public place for purposes of the public intoxication statute. State v. Moriarty, (1881) 74 Ind. 103. See also Cornell, (vehicle parked 20 feet from public road in lane entering private field is not in public place).
The fact a private residence in the instant case has been converted into an apartment house does not render it or its common areas a place of public resort. It is axiomatic in Indiana that a house used for a private residence does not lose its private character merely by the fact a number of people may gather there or have access to it. This applies with equal vigor to multiple unit dwellings. Unlike business enterprises, members of the public at large are not impliedly invited or encouraged to enter the common areas of an apartment house except when they have personal and private matters to conduct with the tenants.5
We thus conclude the enclosed hallway and stairway areas of an apartment house are not public places within the context of our public intoxication statute. The trial court therefore properly granted appellees’ motion to correct errors and entered a finding of not guilty and judgment of acquittal.
Judgment affirmed.
SULLIVAN, J., concurs.
BUCHANAN, C. J., dissents, with separate opinion.
BUCHANAN, Chief Judge, dissenting.
I dissent, because the hallway of an apartment building is a “public place” within the meaning of Indiana‘s public intoxication statute. To conclude otherwise is to uproot centuries of statutory and common law. The great Cardozo said, “What has once been settled by a precedent will not be unsettled overnight, for certainty and uniformity are gains not lightly to be sacrificed.”1
Our public intoxication statute is the evolutionary product of laws enacted over two thousand years ago.2 A more recent precursor of modern public intoxication laws, whether classified as statutory or common law, is a statute enacted by England‘s Par
Statutes descending from this 17th century English law have preserved the distinction between punishing intoxication itself and punishing public intoxication, which offends other citizens.5 Thus, modern statutes prohibit intoxication in specific places, such as streets or alleys, or in “public places.” See Annot., 8 A.L.R.3d 930 (1966).
Many states, including Indiana, have defined “public places” to mean a place where the public has a right to go or be. E.g., State v. Sowers, (1876) 52 Ind. 311. It “does not mean a place devoted solely to the uses of the public, but it means a place which is in point of fact public, as distinguished from private, a place that is visited by many persons and usually accessible to the neighboring public.” R. Perkins, supra at 890. In so delimiting public intoxication, the statutes do “not apply to . . . conduct unless it obtrudes itself offensively on the attention of others.” R. Anderson, Wharton‘s Criminal Law & Procedure § 1021, at 216 (1957).
The courts, in determining whether certain conduct “obtrudes itself offensively on the attention of others” and therefore occurs in a place which is “in point of fact public,” have disagreed whether the curtilage of a private residence is a public place. Compare State v. Sowers, supra (front yard of private residence not a public place), with People v. Olson, (1971) 18 Cal.App.3d 592, 96 Cal.Rptr. 132 (lawn, driveway, and front porch of private residence a public place). The differing opinions appear a result of differing interpretations of the words “public place“; for example, Indiana defines it as a place where the public has a right to go or be, whereas California defines it as a place which is accessible to the public.
In the context of the public intoxication statutes, however, a place where the public has a right to go or be includes a place which is accessible to the public, even though the reverse may not necessarily be true. A California opinion recognizes that the hallway of an apartment building is a public place. People v. Perez, (1976) 64 Cal.App.3d 297, 134 Cal.Rptr. 338. Not only is the hallway of an apartment building accessible to the public, it is a place where the public has a right to go or be. Intoxicated persons, be they tenants of the building or guests of tenants, are not guests of the remaining tenants. These remaining tenants are part of the “public” and should not be compelled to tolerate drunkenness in close proximity to their abode.
This construction of “public” is consistent with those opinions saying that common areas of hotels are within the purview of the statute, but that private rooms within the hotel are not public. Tackett v. Commonwealth, (1953) Ky., 261 S.W.2d 298; Lewis v. Commonwealth, (1923) 197 Ky. 449, 247 S.W. 749; Bordeaux v. State, (1892) 31 Tex.Cr.R. 37, 19 S.W. 603. Just as the rooms within a hotel are private and the common entryways public, so the apartments within an apartment building are private and the common entryways public.
No Indiana case suggests that the law of this State flows against the mainstream of American legal thought. Courts of this State have taken the view that privately owned property generally is not a public
State v. Moriarty (1881) 74 Ind. 103 is no bar to this conclusion. The holding in Moriarty is that an indictment which charged intoxication in a public street showed at least a prima facie case that the area was a public place; the indictment was not defective. Although the court did mention in dicta that the term “street” does not necessarily mean private ways or roads owned by private corporations, and cited cases dealing with assessments for improvements to privately owned roads, the court did not say that a privately owned road could never be a public place for purposes of the public intoxication statute. Again, privately owned areas may be used as public areas.
This is an age of high density population. Apartment dwellers who happen to be residents of homes connected by a common roof are not unlike multiple or single home dwellers abutting a public street, and should not be deprived of the protection of the public intoxication statute.6
I would affirm the convictions.