Pierce v. State

• Decision Date: 15 February 1887
• Docket Number: 13,387
• Citation: 10 N.E. 302,109 Ind. 535
• Parties: Pierce v. The State
• Court: Indiana Supreme Court

10 N.E. 302

109 Ind. 535

Pierce v. The State

No. 13,387

Supreme Court of Indiana

February 15, 1887

From the Kosciusko Circuit Court.

The judgment is affirmed, with costs.

J. S Fraser, W. D. Fraser and L. H. Haymond, for appellant.

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

OPINION

Mitchell, J.

The appellant was convicted in the court below of having unlawfully sold intoxicating liquor on Sunday, contrary to the statute.

The overruling of his motion for a new trial is the only error discussed here.

The attorney general makes the point that the record fails to show that the appellant excepted to the ruling or decision of the court, in overruling the motion for a new trial.

In that connection the record entry made by the clerk recites as follows: "And the court, being sufficiently advised in the premises, does now overrule said motion, to which opinion of the court the said defendant by counsel excepts."

Section 1845, R. S. 1881, sec. 270 of the code regulating criminal procedure, enacts, in substance, that a defendant may take an exception to any decision of the court, etc.

"Opinion" and "decision," it is said, are not synonymous in meaning, and, therefore, an exception to the opinion of the court is not an exception to its decision.

The terms "opinion" and "decision" are sometimes used interchangeably in the statute. Thus, in section 1846, the provision is, that the prosecuting attorney may except "to any opinion of the court," and reserve the point of law for the decision of the Supreme Court. Whether the exception in a criminal proceeding be by the defendant, or by the prosecuting attorney, it must relate to some ruling or decision made in the progress of the case. While it is doubtless more technically accurate to except to the decision of the court, it is equally available to present the question, if the exception be to the opinion. Although the court may announce its ruling and the reasons therefor, orally, it is well understood that an exception, taken by either party at the time, is an exception to the ruling or decision, made upon the matter before the court, and not to the reasons or opinion which the court may have given. The case of Houston v. Williams, 13 Cal. 24, is distinguishable.

The chief contention of the appellant is, that the evidence fails to sustain the verdict of the jury.

The facts make a case like this: The appellant kept a hotel near the depot, in Warsaw, Indiana, to which there was a saloon attached. There was a hall in the building, between the hotel office and the saloon. In this there were doors which communicated into the office and saloon respectively. The room in which the saloon and bar were kept was, so far as appears, devoted exclusively to the saloon business, leaving no occasion to keep it open on Sunday, so far as carrying on the business of the hotel was concerned. The saloon was kept by the appellant. The liquors therein belonged to him.

The witness to whom the sale was charged to have been made testified, that he went into the hotel office on Sunday, and that he did not remember to have seen either the appellant or his clerk about. He passed from the office through the hall into the saloon. He found there a man by the name of Gundecker and two or three others, all of whom were standing some distance from the bar. Gundecker was a boarder at the appellant's hotel. The witness asked Gundecker whether he had any beer. The latter replied: "There is a bottle, why don't you take it." There was a bottle of beer and a beer glass on the counter. The witness took the bottle, poured out a glass of beer, and drank it. Leaving a nickel on the counter, he passed out by the way he entered into the hotel office. This is the substance of all the evidence given in the cause.

It was not explained how the saloon came to be open on Sunday, with the appellant's boarder and two or three other persons in it; nor was there any explanation of how it came about, that the bottle of beer and glass were so conveniently displayed on the counter; nor by what authority the boarder presumed upon the liberality of his host, when he directed the attention of the witness to the bottle and glass on the counter; nor why the witness thought the propriety of the occasion demanded that he should leave the price of the drink on the counter. All this may have occurred without the appellant's knowledge or consent. The facts were however, capable of supporting a different conclusion. The jury may have...