Hunter v. State

• Decision Date: 04 April 1885
• Docket Number: 12,210
• Citation: 101 Ind. 241
• Parties: Hunter v. The State
• Court: Indiana Supreme Court

101 Ind. 241

Hunter v. The State

No. 12,210

Supreme Court of Indiana

April 4, 1885

From the Warren Circuit Court.

Judgment reversed.

J McCabe and E. F. McCabe, for appellant.

F. T Hord, Attorney General, W. B. Hord and J. G. Pearson, for the State.

OPINION

Zollars, C. J.

Appellant was indicted and convicted under section 2094, R. S. 1881, which provides that whoever directly or indirectly sells, barters or gives away any intoxicating liquors to any person under twenty-one years of age shall be fined.

The prosecuting witness testified that in June, 1884, he went into appellant's saloon and bought of him a glass of lager beer, for which he paid five cents; that he was then under twenty-one years of age; that he had been shaving and had a beard on his face.

The appellant testified that at the time mentioned the prosecuting witness Frame, with whom he was but slightly acquainted, came into his saloon in company with George Minor; that Minor called for two glasses of beer; that appellant asked Frame if he was of age, and he answered that he was; that Minor also said that he knew Frame was of age; that appellant then set out two glasses of beer, and received payment from Minor, and that Minor and Frame drank the beer.

This court will not settle the conflict and reverse the judgment upon the weight of the evidence. The indictment charges a sale of liquor to a minor. The court did not err in instructing that the charge will be sustained by proof of a sale directly or indirectly. The sale itself is not the important thing. The purpose of the statute is to prevent minors from getting and using, and thus becoming habitual users, of intoxicating liquors. Whether the sale be direct or indirect, it is still a sale.

In the fourth instruction the court charged the jury as follows: "If Martin Frame and one George Minor together entered defendant's saloon, and George Minor called for lager beer for both, and the defendant, knowing that the liquor was to be drunk by both Minor and Frame, set out two glasses of beer upon the counter, and Minor and Frame both drank the same, and Minor paid for such liquor, such a transaction would be an indirect sale to Martin Frame; and if said Frame was under the age of twenty-one years, the defendant would be guilty of the offence charged."

This instruction we think is erroneous. It is meant, of course, to apply to the testimony of the defendant, in case the jury should conclude to act upon it, and reject the testimony of the prosecuting witness. It charges, in so many words, that if certain facts testified to by the defendant were true they constituted the complete offence charged in the indictment, and the jury should convict him. When it is thus undertaken to state all of the elements of an offence upon the evidence before the jury, the instruction should be so...