Brow v. The State

• Citation: 2 N.E. 296,103 Ind. 133
• Decision Date: 23 September 1885
• Docket Number: 12,296
• Parties: Brow v. The State
• Court: Supreme Court of Indiana

2 N.E. 296

103 Ind. 133

Brow v. The State

No. 12,296

Supreme Court of Indiana

September 23, 1885

From the Benton Circuit Court.

Reversed.

J. T Brown and G. H. Stewart, for appellant.

M. H Walker, Prosecuting Attorney, and I. H. Phares, for the State.

OPINION

Mitchell, C. J.

The first question presented in this record relates to the sufficiency of the indictment. This charges that the defendant did, on a day named, "unlawfully sell to one Freeland G. Tubbs, knowing him to be in a state of intoxication, a certain intoxicating liquor, at and for the price of ten cents, he, the said Freeland G. Tubbs, being then and there, at the time said intoxicating liquor was sold to him as aforesaid, in a state of intoxication."

The insistence of the appellant is that the indictment is fatally defective, because it fails to charge the quantity of liquor sold, and that it was less than a quart.

Section 2092, R. S. 1881, makes it an offence to sell, barter or give away any intoxicating liquor to any person who is in a state of intoxication, by any one knowing him to be in a state of intoxication.

The offence is prima facie complete under this statute, when any quantity of intoxicating liquor is sold to an intoxicated person by another, who knows him to be at the time in a state of intoxication.

It does not follow that such person may not lawfully purchase intoxicating liquor, even from a person who knows of his intoxicated condition, provided the sale is made in good faith and for a lawful purpose. An intoxicated person might purchase intoxicating liquor for medicinal or mechanical purposes, and if lawfully sold to him for such purposes this might, in a proper case, be a defence; but as all such sales are in apparent violation of the law, the excuse for making them must be shown by the defendant, and that it was excusable need not be negatived in the indictment. Payne v. State, 74 Ind. 203.

It is next argued that the verdict is not sustained by the evidence. All that can be said at this point is that the evidence is conflicting. That the prosecuting witness Tubbs was intoxicated nobody denies; that he was for hours, and until a late hour at night, in the appellant's saloon, is not denied. He testified unequivocally that he purchased during his stay eight or ten drinks of whiskey, which he says he drank in the saloon. Some of it, he affirms, was purchased from the defendant, and some from his clerk.

Both the defendant and his clerk deny having sold him any. Both testify that they refused to sell him. Others testify, among them the sheriff of the county and his deputy, that they were present part of the time and saw and heard the proprietor refuse to sell to him. Yet the jury, under proper instructions, found against the defendant. There was evidence to support the finding.

Counsel for appellant argue that the State offered no evidence to show that the defendant knew that the prosecuting witness was intoxicated. It was not necessary. When the State proved the sale, and that the purchaser was at the time in a state of intoxication, the case was prima facie made out. When the fact of intoxication is shown, the law will presume the seller knew it. Whether an individual is in a state of intoxication or not, is a fact ordinarily open to the perception of others, and persons entrusted with the sale of intoxicating liquor must take notice of the condition of those who apply for it. If the degree of intoxication should be so slight as not to be noticeable by the seller, or if, on account of concealment, deception, or any other peculiarity, in any case, it should escape detection, although reasonable care was exercised, it would be a legitimate defence to make such facts appear. Goetz v. State, 41 Ind. 162. Besides, the defence in this case was not rested on the ground of the defendant's want of knowledge, but upon the ground that no sale was made, impliedly, at least, for the reason that the prosecuting witness was known to be intoxicated.

There was no error in the refusal of the court to instruct as requested by the defendant, that the State must prove beyond a reasonable doubt that the defendant knew the prosecuting witness was in a state of intoxication at the time of the sale. The instruction was not correct as an abstract proposition, nor was there any evidence to which it was applicable. Moreover, the...