Nace v. State
| Decision Date | 25 January 1889 |
| Docket Number | 14,392 |
| Citation | 19 N.E. 729,117 Ind. 114 |
| Parties | Nace v. The State |
| Court | Indiana Supreme Court |
From the Howard Circuit Court.
The judgment is reversed, with direction to discharge the appellant.
J. C Blacklidge, W. E. Blacklidge, B. C. Moon and A. C. Bennett for appellant.
L. T Michener, Attorney General, J. H. Gillett and A. B Kirkpatrick, for the State.
This was a criminal prosecution originating before a justice of the peace. The charge in the affidavit is the keeping of a disorderly house.
The prosecution rests upon the following section of the R. S. of 1881:
The appellant was tried and convicted before the justice; from the judgment of the justice he appealed to the circuit court, and was again tried and convicted.
In the justice's court he was adjudged to pay a fine of twenty-two dollars and fifty cents, and in the circuit court a fine of one hundred dollars.
There was a motion in the circuit court, made by the appellant, to quash the affidavit, which was overruled, and the proper exception reserved.
This motion brings in question for construction the section of the statute above set out.
The charge in the affidavit is, "that on or about the 27th day of July, 1886, and for a period of one year prior thereto continuously, at the county of Howard and State of Indiana, William F. Nace, late of said county and State aforesaid, did then and there unlawfully keep a place where intoxicating liquors were sold, bartered, given away, and suffered to be drunk in a disorderly manner, by then and there unlawfully harboring, entertaining and permitting within said place Emma Bradford, Nellie Hamilton, Cora Gray, and divers other persons, both male and female, to this affiant unknown, all of whom were then and there persons of bad repute for virtue, chastity, morality and peaceableness, and while then and there in said place unlawfully allowing and permitting the said persons of bad character for virtue, chastity, morality and peaceableness to quarrel, curse, swear, fight and riot, and use other improper and obscene language, and by then and there unlawfully suffering, allowing and permitting said persons of bad character for virtue, chastity, morality and peaceableness to indecently expose their persons, and by then and there unlawfully suffering, permitting and allowing divers other persons, both male and female, to this affiant unknown, to have unlawful, promiscuous and indiscriminate sexual commerce, all to the annoyance and injury of William Becktell, and divers other persons to this affiant unknown, all of whom were citizens of the county of Howard and State of Indiana, residing within sight and hearing of said place so unlawfully kept by said William F. Nace."
The contention of counsel for the appellant is, that the keeping of a place "in a disorderly manner," where intoxicating liquors are sold, bartered, given away, or suffered to be drunk, is not an offence within this statute. That the words "in a disorderly manner," refer not to the place kept, but to the acts of selling, bartering, giving away, or suffering to be drunk, at or in the place kept, and as the affidavit fails to allege any such disorderly acts, it is bad for that reason, and should have been quashed.
We are not of this opinion.
Suppose the section is transposed so as to read thus:
"Whoever keeps a place in a disorderly manner where intoxicating liquors are sold, bartered, given away, or suffered to be drunk, to the annoyance or injury of any part of the citizens of this State," etc.
When thus transposed there is no difficulty as to the construction to be placed on this statute. It at once becomes manifest that the words "in a disorderly manner" refer to the place that is kept, and not to acts of sale, barter, giving away or drinking of intoxicants.
It will be difficult to transpose the language employed so that the section will bear a different construction from the one we have stated.
Again, if a comma is placed between the words "drunk" and "in," the section will read thus:
"Whoever keeps a place where intoxicating liquors are sold, bartered, given away, or suffered to be drunk, in a disorderly manner." The use of the comma removes all doubt as to what the construction should be.
But we can imagine no reason for which the Legislature would prohibit one who keeps a place where intoxicating liquors are sold and drunk from carrying on his business in that regard in a disorderly manner, and leave him perfectly free to encourage and maintain every other species of disorderly conduct at his said place.
The intention of the Legislature in the enactment of this statute is very manifest.
The appellant moved in the circuit court in arrest of judgment, and for a discharge from the prosecution.
There is but one central question raised by these motions, and our reasoning and the authorities cited will apply alike to both.
The question presented by these motions is more serious than the one we have considered.
They bring in question the jurisdiction of the court over the offence charged in the affidavit. Justices of the peace have jurisdiction in criminal cases such as is given to them by statute, and no other.
The following are all of the sections of the statute that relate to the jurisdiction of justices in criminal cases. R. S. 1881:
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