Divine v. State
| Decision Date | 06 June 1853 |
| Citation | 4 Ind. 240 |
| Parties | Divine v. The State |
| Court | Indiana Supreme Court |
ERROR to the Jefferson Circuit Court.
The judgment is reversed. Cause remanded.
J. R. Troxell, for the plaintiff.
D. S. Gooding, for the state.
Indictment for vending spirits without license. Motion to quash overruled. Trial and judgment for the state.
No authorities are cited on either side. We are therefore ignorant of the ground assumed on the motion to quash in the Court below.
The objection we find to the indictment is, that there is no allegation of the price for which the liquor was sold. On motion to quash, this defect is fatal. Every fact essential to be proved, should be alleged. Here the pleader alleges a "sale," which is a conclusion from the facts, and leaves the important element of price, a fact essential to support the idea of sale, to be inferred. Perhaps, had all the facts been stated, the Court might have considered it a barter. It is inverting the order of pleading to allege conclusions, and leave the facts to inference.
The motion to quash should have been sustained.
The judgment is reversed. Cause remanded, &c.
To continue reading
Request your trial
-
Hatfield v. The State
... ... The conditions of the one are ... repugnant to the conditions of the others ... A sale ... or a barter can not be charged in general terms, for it would ... be but stating a conclusion. The facts constituting the sale ... or barter must be set forth. Divine v ... State, 4 Ind. 240 ... As a ... gift denotes the transfer of property without any thing being ... received in return, the word itself is fully descriptive of ... the transaction, and it is sufficient to use it in an ... indictment without more ... ...
-
City of Cannelton v. Collins
...Law, 1022. This court has uniformly held an allegation of the price or consideration indispensable in charging a sale of liquor. Divine v. State, 4 Ind. 240;Hare v. State, 4 Ind. 241;State v. Miles, 4 Ind. 577;Brutton v. State, 4 Ind. 601;Miles v. State, 5 Ind. 215;Segur v. State, 6 Ind. 45......
-
People v. Sweetser
...to be proved should be alleged. *** Perhaps, had all the facts been stated, the court might have considered it a barter.”’ Divine v. State, 4 Ind. 240, and other cases decided by that court. Bishop concludes by saying: “The course of things in most of our states has been to accept as good t......
-
City of Cannelton v. Collins
... ... is not properly before us, and we cannot examine its ... provisions ... [88 N.E. 67] ... This State has not extended its license laws over the ... wholesale liquor trade, but has left that source of revenue ... wholly to the federal government; ... This court has uniformly held an allegation ... of the price or consideration indispensable in charging a ... sale of liquor. Divine v. State (1853), 4 ... Ind. 240; Hare v. State (1853), 4 Ind. 241; ... State v. Miles (1853), 4 Ind. 577; ... Brutton v. State (1853), 4 Ind. 601; ... ...