Dugan v. State
| Decision Date | 08 January 1918 |
| Docket Number | 23,326 |
| Citation | 118 N.E. 307,187 Ind. 32 |
| Parties | Dugan v. State of Indiana |
| Court | Indiana Supreme Court |
From Marion Criminal Court (46332); H. C. Austill, Special Judge.
Prosecution by the State of Indiana against Michael Dugan. From a judgment of conviction, the defendant appeals.
Affirmed.
Eph Inman, J. T. Markey and Edwin Steers, for appellant.
Ele Stansbury, Attorney-General, Alva J. Rucker, Elmer E Hastings and Dale F. Stansbury, for the state.
Appellant was convicted in the trial court on an indictment charging him with having unlawfully kept, run and operated a place where intoxicating liquors were bartered, sold and given away in violation of § 1 of an act in force March 16, 1907. Acts 1907 p. 689, § 8351 Burns 1914. The overruling of appellant's motion for a new trial is the only error assigned, and the only errors presented by the briefs relate to the action of the trial court in giving instructions to the jury, alleged to be erroneous, and in refusing to give instruction No. 1 tendered by appellant.
As shown by the evidence, appellant held a license for the sale of intoxicating liquor for a room located on the first floor of a building in Indianapolis, Indiana, known as the Plaza Hotel, and he operated a bar in the room covered by the license. On the top floor of the building was a cafe and roof garden. Appellant rented the room in which the bar was operated and also the cafe and roof-garden rooms paying as rent therefor $ 200 a month. The evidence of appellant himself shows that intoxicating liquors procured at his bar were served and consumed with his knowledge and consent in the cafe conducted on the roof garden.
The theory of the state is that appellant was keeping, running and operating the place designated as the Plaza Cafe and Roof Garden on December 23, 1916, and that intoxicating liquors were sold there in violation of law. The theory of the defendant is that no intoxicating liquors were sold in the cafe, but that they were sold in the licensed barroom of appellant to waiters from the cafe, who came to the barroom with money of the patrons of the cafe and purchased such liquors as the agent of such patrons to be served to them in the cafe.
Under the evidence, the jury was required to determine whether the waiters sold and delivered the liquor in the cafe as the agents of appellant, collecting the money in advance for appellant, or whether they purchased the liquor at the licensed bar of appellant as the agents of patrons of the cafe with money furnished by patrons for that purpose. The decision was adverse to appellant. The issue of fact thus presented was fully and fairly submitted to the jury by the court under instructions Nos. 9, 10, and 11. Appellant has no just reason to complain of the refusal of the court to give instruction No. 1 tendered by him on the same subject, for the reason that it was fully covered by the instructions to which reference has been made.
Complaint is made of that part of instruction No. 5 in which the jury was told that before it could find the defendant guilty it must find beyond a reasonable doubt that he kept, owned and operated a place, and that "someone" at that place sold, bartered or gave away intoxicating liquors in violation of law. It is asserted that the word "someone" is too general in its import, being broad enough to include a stranger having no connection with the place who might carry a flask of intoxicating liquor into the place and while there give it to a friend. The instruction may be subject to the technical objection urged, but it is not at all likely that the jury so understood it. There was no evidence that any one other than the waiters employed in the cafe handled any intoxicating liquor in the place, but the evidence shows that if any sales were made there they were made by the waiters. By the word "someone," as used in the instruction the court meant some one employed in connection with the place--some one of the waiters. The jury, no doubt understood the instruction as the court meant it, and under the evidence it could not have applied the word "someone" to any person other than those employed in the operation of the place. Under the evidence the error of which appellant complains could not have been prejudicial.
Appellant's testimony...
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