Rigrish v. State

• Decision Date: 20 November 1912
• Docket Number: 22,210
• Citation: 99 N.E. 786,178 Ind. 470
• Parties: Rigrish v. State of Indiana
• Court: Indiana Supreme Court

99 N.E. 786

178 Ind. 470

Rigrish v. State of Indiana

No. 22,210

Supreme Court of Indiana

November 20, 1912

From Clinton Circuit Court, Leonard J. Curtis, Special Judge.

Prosecution by the State of Indiana against David W. Rigrish. From a judgment of conviction, the defendant appeals.

Affirmed.

Joseph P. Gray, O. E. Brumbaugh and Ira M. Holmes, for appellant.

Thomas M. Honan, Attorney-General, Thomas H. Branaman, Edwin Corr and James E. McCullough, for the State.

OPINION

Spencer, J.

Appellant was convicted upon a grand jury indictment charging him with keeping and operating a place where intoxicating liquors were sold, bartered or given away in violation of § 8351 Burns 1908, Acts 1907 p. 689.

Halford G. Davis, Bramble Perkins and appellant were indicted jointly by the grand jury of Clinton county, Indiana. Appellant's motion for a separate trial was granted, and on a plea of not guilty he was tried by a jury and convicted. The court overruled motions for a new trial and in arrest of judgment and rendered judgment on the verdict.

The errors relied on for reversal are the overruling of appellant's motions (1) to quash the indictment, (2) for a new trial, and (3) in arrest of judgment.

The indictment, omitting formal parts, charges, "that David W. Rigrish * * * on the 26th day of December, A. D. 1911, and continuously thereafter, to and including the day of this presentment, at said county of Clinton and State of Indiana did then and there, unlawfully keep, run and operate a place where intoxicating liquors were sold, bartered and given away, in violation of the laws of the State of Indiana," etc.

The part of § 8351 Burns 1908, Acts 1907 p. 689, on which this indictment is based, reads as follows: "And any person who shall keep, run or operate a place where intoxicating liquors are sold, bartered or given away in violation of the laws of the State, * * * shall be deemed guilty of a misdemeanor and upon conviction shall be fined," etc. "The general rule is, that an indictment describing the offense in the language used by the statute in defining it is sufficient." Donovan v. State (1908), 170 Ind. 123, 127, 83 N.E. 744. See, also, Yazel v. State (1908), 170 Ind. 535, 538, 84 N.E. 972; Regandanz v. State (1908), 171 Ind. 387, 391, 86 N.E. 446. It was competent to charge this offense in the language of the statute. It was not necessary under this part of the section of the statute to allege specific sales of intoxicating liquors, or to name the persons to whom such sales were made in violation of the laws of the State. Evidence of all kinds of unlawful sales is admissible in support of the charge, and it is not necessary to set forth specific sales. Donovan v. State, supra.

"Neither was it necessary to allege that 'such intoxicating liquors were sold by appellant while he was the owner or proprietor of said place.' The allegation is that he 'did then and there unlawfully keep, run and operate a place where intoxicating liquors were sold,' etc., and facts were averred which show that the sales of intoxicating liquors made at said place were in violation of section one of the act of 1907, supra. This was a sufficient description of the character of the liquors sold. It is not necessary to mention the particular kind of intoxicating liquors." Donovan v. State, supra. It is not necessary to negative any exceptions contained in the provisos in this section of the statute. Yazel v. State, supra; Donovan v. State, supra; Schondel v. State (1910), 174 Ind. 734, 736, 93 N.E. 67. We think the indictment was sufficient.

Appellant contends, in support of his motion for a new trial, that the evidence was not sufficient to support the verdict. A careful review of the evidence will show that the Rigrish Drug Company is a corporation owning and operating three drug stores--one in Indianapolis, one in Martinsville, and one in Frankfort, Indiana. At the time of the alleged illegal sales, the company was composed of Frederick R. Rigrish, David W. Rigrish and William Winters.

The company's store in Frankfort, Indiana, was known as the Red Cross Drug Store, was established about May 15, 1911, and was located in the front room on the first floor of a two story building on Washington street. The company carried a full stock of merchandise, such as is usually kept for sale in drug stores, including chemicals, drugs, soaps and sundries, and such articles as are found in a general prescription drug store. This stock was in charge of a licensed pharmacist. A restaurant was operated in the rear room, and there were sleeping rooms on the second floor. The prescription case, or room containing drugs and medicines, was partitioned off from the front part of the store. A door led into this room through the partition, and also a door opened into a hallway leading from the front of the building back to a small room used as a kitchen for the restaurant and as a storage room for the drug store. Intoxicating liquors were kept in quantities in the prescription room.

Numerous witnesses, produced by the State, testified to purchasing drinks of whisky and whisky in quantities of...