Givens v. State

• Decision Date: 16 December 1914
• Docket Number: No. 22650.,22650.
• Citation: 107 N.E. 78,182 Ind. 561
• Parties: GIVENS v. STATE.
• Court: Indiana Supreme Court

182 Ind. 561

107 N.E. 78

GIVENS

v.STATE.

No. 22650.

Supreme Court of Indiana.

Dec. 16, 1914.

Appeal from Circuit Court, Jay County; James J. Moran, Judge.

James Givens was convicted of keeping a place where intoxicating liquors were sold in violation of law, and he appeals. Affirmed.Morton S. Hawkins, of Indianapolis, and S. A. D. Whipple & Son, Smith & Fleming, and J. F. Denney, all of Portland, for appellant. Thomas M. Honan, Atty. Gen., and Thos. H. Branaman, Asst. Atty. Gen., for the State.

MORRIS, J.

Appellant was charged by indictment with keeping a place where intoxicating liquors were sold in violation of law and having such liquors in his possession for such purpose. The charge was presented under section 1 of the act of March 16, 1907, commonly called the “Blind Tiger” law. Acts 1907, p. 689; section 8351, Burns 1914. The section of the act provides that any person who shall keep, run, or operate a place where intoxicating liquors are sold, in violation of law, or shall be found in possession of such liquors, for such purpose, shall be deemed guilty of a misdemeanor. Appellant was tried by the court, and, from a judgment of conviction, prosecutes this appeal. His motion for a new trial, grounded on the insufficiency of the evidence, was overruled, and this action is the sole error assigned.

[1] The trial court was warranted in finding the following facts: The Order of Larks is a social, fraternal order, unincorporated, and Temple No. 1, of the order, with a membership of 150 men, is located at Portland, where the order originated; initiation fees, and dues, are paid by lodge members; this temple occupies a lodge room, billiard and assembly rooms, and parlor, comfortably furnished, and in the rear of the billiard room has a buffet in which there is a counter and back bar, equipped with coils and faucets, and a beer cooler; a large quantity of beer was found in the above place by an officer who made a search, under a warrant issued for such purpose. Appellant occupied the position of steward and janitor of the lodge, and he, and three members of a house committee, carried the only keys to the buffet; the beer in question was purchased by the house committee with lodge funds, and similar purchases had been regularly made since the lodge was established; the plan of disposing of the beer was to sell tickets or coupons (to lodge members only), which were good in exchange for definite quantities of beer, and appellant, when present in the buffet, would deliver over the counter, to coupon holding members, such quantities of beer as might be desired, the members depositing coupons good for such quantities, according to a fixed schedule, in a receptacle provided therefor; when appellant was not in the buffet, members frequently helped themselves to beer, from the cooler, and deposited tickets or coupons, in exchange therefor in the receptacle; at times, lunch was purchased and distributed in the same manner; neither the house committee nor appellant derived any profit from handling the beer or lunch; the proceeds of ticket and coupon sales were received by the committee, and expended in the purchase of more beer or lunch, or used in paying general lodge expenses; appellant was employed on a regular salary and received no other compensation for his services; the lodge had a select membership, and no beer was delivered to persons not members of the Portland Temple; the city of Portland was “dry” under the provisions of the Proctor Local Option Law.

The evidence presents for consideration a single question, viz., did the disposition of the beer, by the method in use, constitute a sale, within the prohibition of the statute? The Attorney General concedes that when the beer was purchased, it belongs to the members of the temple, in common, but contends that when a definite portion of the beer was delivered to a member in exchange for coupons or tickets, representing certain money values, the number of coupons or tickets surrendered depending on the quantity of beer received, according to a fixed schedule, the transaction constituted a sale. Appellant earnestly contends that a transaction of such character does not constitute a sale; that where liquors are owned in common by members of an incorporated society, a division thereof among the members, by any system, cannot constitute a sale, because a person cannot sell his own property to himself. He cites Commonwealth v. Smith, 102 Mass. 144, and cases from other jurisdictions, in support of the proposition.

The question here involved has been considered by most of the American state courts, and by various federal ones. In the latter, transactions of the kind here under discussion are held sales. United States v. Alexis Club (D. C.) 98 Fed. 725. In that case, the essential facts were substantially as those here, and in the opinion by McPherson, Judge, it was said:

“Did the defendant, then, sell liquor to its members? I shall not review the irreconcilable cases upon this subject, nor make the superfluous attempt to produce a new argument in support of my conclusion. I content myself with saying, briefly, that I agree with the general opinion of the community, and hold the transaction to be a simple, ordinary sale. If a chartered club, such as the defendant, buys liquor, the legal title to this property is in the corporation, and not in the members. *** The legal title, then, being in the corporation, it is further to be observed that, when the title passes to a consumer, it passes by a transaction that exhibits every element of a sale, and shows no outward sign of being anything else. The intending consumer asks to be served with a definite quantity of intoxicating drink. The owner of the legal title to the liquor, acting by a paid servant, agrees to the request, requires the price to be paid in cash, or accepts the consumer's promise to pay in the future, and thereupon delivers the subject of the bargain. Nothing else takes place, and, if this is not a sale, but is really a partial distribution of the common stock, the truth is so veiled that the participants in the transaction, I venture to assert, rarely suspect that they are taking part in anything but a commonplace sale. It is safe to say that-except, perhaps, among those lawyers that may be familiar with the discussion upon the subject-to order and...