Lebkovitz v. State

• Decision Date: 08 December 1887
• Docket Number: 14,041
• Citation: Lebkovitz v. State, 113 Ind. 26, 14 N. E. 363 (Ind. 1887)
• Parties: Lebkovitz v. The State
• Court: Indiana Supreme Court

14 N.E. 363

113 Ind. 26

Lebkovitz v. The State

No. 14,041

Supreme Court of Indiana

December 8, 1887

Reported at: 113 Ind. 26 at 31.

From the Marion Criminal Court.

Judgment reversed.

R. O Hawkins, P. Norton and J. E. Florea, for appellant.

L. T Michener, Attorney General, J. L. Mitchell, Prosecuting Attorney, and J. H. Gillett, for the State.

OPINION

Zollars, J.

In the indictment, of one count, appellant is charged with having sold intoxicating liquors on the 4th day of July, to be drunk as a beverage, in violation of the statute. R. S. 1881, section 2098.

The prosecuting witness having testified that he purchased intoxicating liquors of appellant on the morning of the 4th day of July, giving the particulars, the State, over appellant's objection, was allowed to introduce the further testimony of that witness to prove that he also purchased of appellant intoxicating liquors on the afternoon of the same day. Both after the proof of the sale in the morning, and after the State had rested its case, appellant moved that the State should be compelled to elect upon which sale it would rely for a conviction.

The court overruled the motions and declined to order an election on the part of the State.

These rulings can not be sustained without departing from established precedents and settled rules of practice.

As we have stated, appellant is charged with a single violation of the statute--with a single offence. The purpose of written pleadings is to inform the opposite party, in a definite and certain manner, of what he is to meet. And it is a universal principle of practice that the opposite party is called upon to meet only what is charged against him. He can not be charged in a pleading with one wrong or offence, and be convicted upon the evidence of a different wrong or offence. Nor can he be charged with a single wrong or offence, and be convicted upon the evidence of additional wrongs and offences, although of the same sort and grade.

Under the indictment here, the State had the right to convict appellant for selling intoxicating liquors on the 4th day of July, if the evidence warranted such a conviction, but it could not have the right to charge him with a single offence, and convict him of the offence so charged, and of an additional offence, although of the same sort and grade.

The sales of intoxicating liquors in the morning and afternoon, although upon the same day, were just as separate and distinct offences as if the sales had been upon different days. Upon principle, it can make no difference whether the sales were in the morning and afternoon of the same day, or at 11:30 p. m. of one day, and 12:30 a. m. of the succeeding day. In either event, each sale is a violation of the statute, if prohibited, and a separate and distinct offence. Nor can it make any difference whether the crime charged is a violation of the liquor law, or an assault and battery, or like offence.

Here the State introduced testimony to establish two violations of the liquor law--two separate and distinct offences--and the question is, whether or not, after that was done, appellant, by an election on the part of the State, had a right to be informed as to which sale it would rely upon for a conviction.

The general rule applicable in such cases was laid down in the case of Long v. State, 56 Ind. 182 (26 Am. R. 19), as follows: "We understand the rule to be, that, when, in a case like this, a single sale only is charged in the indictment, and the evidence shows that there have been several sales of the same kind, made within the period of time covered by the indictment, the prosecuting attorney should be required, when requested so to do, to elect which sale the State will insist upon for a conviction, before the defendant is called upon for his defence."

In the case of Richardson v. State, 63 Ind. 192, the defendant was charged with a single assault and battery. The evidence showed that there were two assaults and batteries near the same time, yet so far separated as to constitute separate offences. In the decision of the case on appeal this court, per Worden, J., said: "There was but a single charge of assault and battery; and the question arises whether, upon such charge, the State may give evidence of several offences, and then select one upon which to rely for a conviction, and abandon the others. We are of the opinion that this can not be legally done. When the State gave evidence of the first assault and battery, she elected to try him for that offence, and she could not afterward abandon the election thus made, and put in evidence of another offence."

Evidence of the two sales having been adduced under the rulings of the trial court, appellant's conviction would be a bar to any further conviction for either sale. Brinkman v State, 57 Ind. 76. But that consideration does not alone...