Lebkovitz v. State
| Decision Date | 30 December 1887 |
| Docket Number | 14,041 |
| Citation | 14 N.E. 597,113 Ind. 26 |
| Parties | Lebkovitz v. The State |
| Court | Indiana Supreme Court |
Original Opinion of December 8, 1887, Reported at: 113 Ind 26.
A petition for a rehearing has been filed, and the questions presented by it elaborately argued by the attorney general and, while we have no doubt at all that our former opinion is right, we have thought it best to again discuss some of the questions presented by the record.
We understand it to be an elementary principle that "A single instance of selling constitutes the offence, and a person may commit any number of offences in a single day or as to one purchaser." Bishop Statutory Crimes, section 1016.
The offence of selling on a day forbidden by law is complete when one sale is proved. This, we suppose, no lawyer nor any thinking man will deny, since the rule does not depend upon precedent, but upon reason. As each sale is a complete and distinct offence, no man can be prosecuted under an indictment charging one offence of more than one illegal sale. This conclusion rests on reason as well as authority. The plainest principles of natural justice require that an accused charged with a single crime shall know the specific offence alleged against him, and not be confronted with evidence of more than one offence where, as here, only one is charged. If the State desires to prosecute for two illegal sales, or for twenty illegal sales, made on one day and to one person, the way is open and the procedure plain, but the way is not to prove two separate offences where only a single offence is charged.
Each sale of liquor on a forbidden day is as separate and distinct an offence as an assault and battery or as a larceny. If a man should strike another at ten o'clock in the forenoon and again assault him at one o'clock in the afternoon would any one contend that the State could, under a single indictment, prove both offences? Or, if Lebkovitz had stolen from the prosecuting witness five bottles of wine in the forenoon and ten in the afternoon of the same day, would it be seriously contended that both offences might be proved under an indictment charging only one?
Liquor sellers are subject to the same laws as other law-breakers, and no power, save that of the sovereign power of the State, has the right to annul, alter or suspend those laws, and it is because they are bound by those laws that the courts and the officers of the commonwealth must enforce the laws as they are written. No court has the authority to make a law applicable to one class of offenders; but courts and officers must deal with all offenders as the law commands, yielding their own individual judgments to the supreme rule of the State.
We are not dealing with a case where the offences are so mingled that there can be no severance. No such case is at our bar. There were in this case two entirely distinct and disconnected offences--distinct in themselves and separated by a clear and perceptible interval of time. Where the offences are so blended that a separation is impracticable, a different rule obtains; but here the offences are not blended, for a wide interval separates them, and there is not even a remote connection between them, save that they are members of the same general class and were committed on the...
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