Donovan v. State

• Decision Date: 26 February 1908
• Docket Number: No. 21,121.,21,121.
• Citation: 170 Ind. 123,83 N.E. 744
• Parties: DONOVAN v. STATE.
• Court: Indiana Supreme Court

170 Ind. 123

83 N.E. 744

DONOVAN

v.STATE.

No. 21,121.

Supreme Court of Indiana.

Feb. 26, 1908.

Appeal from Circuit Court, Delaware County; Jos. G. Leffler, Judge.

Nick Donovan was convicted of illegal sale of intoxicating liquors, and he appeals. Affirmed.

Walter Gray, Clarence Dearth, Ralph S. Gregory, and Walter J. Lotz, for appellant. Jas. Bingham, Edw. M. White, Alexander G. Cavins, Henry M. Dowling, Wm. H. Thompson, Wm. A. Thompson, and Wilber Ryman, for the State.

MONKS, C. J.

Appellant was prosecuted and convicted under that part of section 1 of the act approved February 13, 1907 (Acts 1907, pp. 27, 28, c. 16, § 1), which reads as follows: “And any person who shall keep, run or operate a place where intoxicating liquors are sold, bartered or given away in violation of the laws of the state *** shall be deemed guilty of a misdemeanor and upon conviction shall be fined in any sum not less than fifty ($50) dollars nor more than five hundred ($500) dollars, to which the court or jury trying the case shall add imprisonment in the county jail of not less than thirty days nor more than six months: provided, that none of the provisions of this act shall apply to any person, firm or corporation engaged as a wholesale dealer who does not sell in less quantities than five gallons at a time: provided, further, that a wholesale dealer, as used in this act, shall be construed to mean a person, firm or corporation whose sole business in connection with the liquor traffic is to sell at wholesale to retail dealers licensed by the laws of the state, or to wholesale liquor dealers or to druggists or pharmacists who are licensed as such by the state board of pharmacy.” As the affidavit in this case was made and filed in the court below on March 12, 1907, and charges the offense to have been committed after the taking effect of said act of 1907 (Acts 1907, p. 27, c. 16), approved February 13, 1907, and which took effect on that day, it is governed by that act, and not by the act of March 16, 1907 (Acts 1907, p. 689, c. 293), which took effect March 16, 1907. The errors assigned call in question the sufficiency of the affidavit and the action of the court in overruling the motion for a new trial.

Appellant insists that the affidavit was insufficient because (1) “the ‘place’ is of the essence of the offense and should be an inclosure or blinded, and the affidavit should, but does not, specifically describe and locate such a place; (2) there is no person named to whom any sale was made; (3) it is not alleged that such intoxicating liquors were sold by appellant while he was owner or proprietor of said place; (4) there is no allegation that the liquors sold were of the character contemplated by the act in controversy; (5) it is not alleged what particular laws such liquors were sold in violation of.” The affidavit avers that “Nick Donovan, *** at and in the county of Delaware and state of Indiana, did then and there unlawfully keep, run, and operate a place where intoxicating liquors were sold,” etc. There is nothing in said act requiring that the “place” be “inclosed” or “blinded,” or that the keeping, operating, or running the same, or the sale of intoxicating liquors thereat, must be secret to make such acts a violation of said act, and we know of no rule of statutory construction that would sustain such interpretation. Said act does not make any particular locality or place an ingredient of the offense, nor can any judgment rendered upon a conviction have reference to any particular place or locality. In this respect said act is like section 2097, Rev. St. 1881, being section 2193, Burns' Ann. St. 1901, which took effect September 19, 1881, and reads as follows: “Whoever keeps a place where intoxicating liquors are sold, bartered, given away, or suffered to be drunk in a disorderly manner, to the annoyance or injury of any part of the citizens of this state, shall be fined, for every day the same is so kept, not more than one hundred dollars nor less than ten.”

In Skinner v. State, 120 Ind. 127, 22 N. E. 115, in response to a contention that it was not sufficient in charging an offense under section 2193, Burns' Ann. St. 1901 (section 2097, Rev. St. 1881), to follow the language of the statute this court said on page 129 of 120 Ind., page 115 of 22 N. E.: “The general rule is that an indictment describing the offense in the language used by the statute in defining it is sufficient. State v. Bougher, 3 Blackf. 307;Pelts v. State, 3 Blackf. 28;Marble v. State, 13 Ind. 362;Malone v. State, 14 Ind. 219;Stuckmyer v. State, 29 Ind. 20;Shinn v. State, 68 Ind. 423;State v. Allisbach, 69 Ind. 50;Howard v. State, 87 Ind. 68;Toops v. State, 92 Ind. 13;State v. Miller, 98 Ind. 70;State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117. Some of the exceptions are where the statute creating the offense charged contains language which embraces acts evidently not intended to be made criminal, and cases where it was the evident intention of the Legislature that reference should be had to the common law for a complete definition of the offense declared by the statute. Schmidt v. State, 78 Ind. 41; Moore, Crim. Law, § 171; Anderson v. State, 7 Ohio (pt. 2) 250; Mains v. State, 42 Ind. 327, 13 Am. Rep. 364. *** The statute under consideration does, in our opinion, create and fully define the offense for which the appellant was prosecuted. It declared that whoever keeps a place where intoxicating liquors are sold, bartered, given away, or suffered to be drunk in a disorderly manner, to the annoyance or injury of any part of the citizens of this state, shall be fined, etc. In such case we think it sufficient, in charging the violation of such statute, to follow the language of the Legislature in defining the offense.” In State v. Hoard, 123 Ind. 34, 23 N. E. 972, this court held that an indictment which charges a violation of said section 2193 (2097), supra, in the language of the statute was sufficient. The part of each count in the indictment in that case describing the “place” was as follows: “That Myron Hoard *** at the county of Steuben, in the state of Indiana, *** did then and there unlawfully keep a certain place where intoxicating liquors were sold,” etc. These cases rule this case as to the description of the “place,” and upon their authority we hold that it was sufficient to describe the place under section 1 of said act of 1907 (Acts 1907, p. 27, c. 16) in the language of the statute. See, also, Howard v. State, 6 Ind. 444;Shilling v. State, 5 Ind. 443;Ritter v. State, 111 Ind. 324, 12 N. E. 501, and cases cited; Trout v. State, 111 Ind. 499, 12 N. E. 1005;State v. Beach, 147 Ind. 74, 77, 78, 46 N. E. 145, 36 L. R. A. 179;Keith v. State, 90 Ind. 89;Winlock v. State, 121 Ind. 531, 23 N. E. 514;State v. New, 165 Ind. 571, 76 N. E. 400, and cases cited; Betts v. State, 93 Ind. 375;Johnson v. State, 13 Ind. App. 299, 41 N. E. 550; Gillett, Crim. Law (2d Ed.) pp. 130, 132, 589, and note 6, 709; 1 Bishop, Crim. Proc. 372; 2 Bishop, Crim. Proc. 111; 3 Chitty, Crim. Law, 39-41; 23 Cyc. 240-244; State v. Waltz, 74 Iowa, 610, 38 N. W. 494, and cases cited; State v. Dixon, 104 Iowa, 741, 74 N. W. 692.

It is not necessary under the part of said section 1 (Acts 1907, pp. 27, 28, c. 16) involved in the case and above set out to allege specific sales of intoxicating liquor, or name the person or persons to whom intoxicating liquors were sold in violation of the laws of the state. Huber v. State, 25 Ind. 175;Farrell v. State, 38 Ind. 136, 137;State v. Boughner, 3 Blackf. 307;Shilling v. State, 5 Ind. 443;State v. New, 165 Ind. 571, 76 N. E. 400, and cases cited; Anderson v. Van Buren Circuit Judge, 130 Mich. 697, 90 N. W. 692;State v. Dorr, 82 Me. 157, 19 Atl. 157; State v. Lang, 63 Me. 215, 219, 220; 23 Cyc. 240-244; Black on Intoxicating Liquors, 484, 485, 486. In Anderson v. Van Buren Circuit Judge, 130 Mich. 701, 90 N. W. 693, the court said: “It is competent to charge this offense in the manner adopted. It is in the language of the statute, and apprises the defendant that he is charged with a continuing act of keeping a place for the unlawful sale of liquors. All kinds of unlawful sales are admissible in support of the charge, and it is not necessary to set forth specific sales. In this respect it is different from an information charging one with making a sale in violation of law. In such case it has been usual and necessary to state to whom the sale was made, and, if all sales were not unlawful, to show that it was unlawful by stating wherein it was so.”

Neither was it necessary to allege that “such intoxicating liquors were sold by appellant while he was the owner or proprietor of said place.” The allegation is that he “did then and there unlawfully keep, run, and operate a place where intoxicating liquors were sold,” etc., and facts were averred which show that the sales of intoxicating liquors made at said place were in violation of section 1 of said act of 1907. This was a sufficient description of the character of the liquors sold. It is not necessary to mention the particular kind of intoxicating liquor. Josephdaffer v. State, 32 Ind. 403; Gillett, Crim. Law (2d Ed.) 591.

It is not necessary to name the particular law violated; that is determined from the facts alleged in the indictment or affidavit.

It is claimed by appellee that said act of 1907 (Acts 1907, pp. 27-33, c. 16), which purports to amend section 12 of an act approved March 17, 1875 (Sp. Laws 1875, p. 57, c. 13), being section 7285, Burns' Ann. St. 1901 (section 5320, Rev. St. 1881), and to enact a number of sections as supplemental to said act of 1875, is in violation of section 19, art. 4, of the Constitution of this state, for the reason that the title of said act of 1875 is not “broad enough to embrace the matters and things provided in said act of 1907.” Said section of the Constitution reads as follows: “Every act shall embrace but one subject and...