Robbins v. State
| Decision Date | 08 December 1925 |
| Docket Number | 24,452 |
| Parties | Robbins v. State of Indiana |
| Court | Indiana Supreme Court |
Rehearing Denied February 24, 1926.
1 EVIDENCE.---Appellate tribunal can take notice of its records in another case, either upon suggestion of counsel or upon its own motion.---An appellate tribunal can take notice of its own records in another case, either upon suggestion of counsel, or upon its own motion. p. 307.
2. INTOXICATING LIQUORS.---Affidavit charging maintenance of liquor nuisance held not invalid because it charged more than one act that would constitute the offense and did not allege kind or quantity of intoxicating liquor sold, price received or persons to whom sold.---An affidavit charging the maintenance of a liquor nuisance was not invalid because it charged more than one act that would constitute the offense and did not allege the kind or quantity of intoxicating liquor sold, the price received or the name or names of the person or persons to whom sold. p. 307.
3. INTOXICATING LIQUORS.---Section 20 of the prohibition law of 1917 was not invalid because not within the title of the act.---Section 20 of the prohibition law of 1917 (Acts 1917 p. 15, 8356t Burns' Supp. 1921), defining and penalizing the maintenance of a liquor nuisance, was not unconstitutional and void because not embraced within the title of the act. p. 308.
4. INTOXICATING LIQUORS.---Error in instruction as to the charge against the accused for maintaining liquor nuisance held not to require reversal.---In a prosecution for maintaining a liquor nuisance, an instruction that accused was charged with maintaining such nuisance "as defined by statute and these instructions, and with reference to the unlawful possession and use of intoxicating liquor," would not authorize the jury to infer that the appellant could be convicted for merely having possession of intoxicating liquor and hence was not reversible error. p. 308.
5. CRIMINAL LAW.---Error in particular instruction will not justify reversal unless the whole charge of which it forms a part would mislead the jury as to the law of the case.---Error in a particular instruction will not justify a reversal unless it is of such a nature that the whole charge of which it forms a part is thereby vitiated so as to mislead the jury as to the law of the case p. 309.
6. INTOXICATING LIQUORS.---Evidence held sufficient to sustain conviction for maintaining liquor nuisance.---Evidence held sufficient to sustain conviction for maintaining, and assisting in maintaining, a liquor nuisance as defined in 20 of the prohibition law of 1917 (Acts 1917 p 15, 8356t Burns' Supp. 1921). p. 309.
From the Decatur Circuit Court; John W. Craig, Judge.
Thomas Robbins was convicted of maintaining a liquor nuisance as defined by § 20 of the prohibition law of 1917, and he appeals.
Affirmed.
Hugh D. Wickens and Frank Hamilton, for appellant.
U. S. Lesh, Attorney-General, Mrs. Edward Franklin White, Deputy Attorney-General, John W. Holcomb and Tremain & Turner, for the State.
OPINION
The appellant was convicted by a jury in the Decatur Circuit Court of a violation of § 20 of the prohibition law of Indiana, Acts 1917 p. 15, § 8356t Burns' Supp. 1921. From the judgment he appeals and assigns as error that the court erred in overruling his motion to quash the affidavit and that the court erred in overruling his motion for a new trial.
Said § 20, supra, provides that, "Any room, house, building, boat, structure, or place of any kind where intoxicating liquor is sold, manufactured, bartered, or given away in violation of law, or where persons are permitted to resort for the purpose of drinking intoxicating liquor as a beverage, or any place, building, or club where such liquor is kept to be drunk as a beverage by the members thereof or any other persons, or any place where such liquor is kept for sale, barter, or delivery in violation of the laws of this state, and all intoxicating liquor and all property kept in and used in maintaining such a place, are hereby declared to be a common nuisance; and any person who maintains or assists in maintaining such common nuisance, shall be guilty of a misdemeanor, * * *."
It appears from the affidavit in this case that the appellant and one Gregg Alyea were jointly charged with the offense named therein. The affidavit, omitting the caption, signature and jurat, is as follows:
"Hugh Flint being duly sworn upon his oath says that on or about the day of November, 1922, and on or about the day of December, 1922, and on or about the day of March, 1923, at and in the county of Decatur and State of Indiana, Thomas Robbins and Gregg Alyea did then and there unlawfully keep, use, maintain, and assist in maintaining certain rooms, to wit: The first or ground floor rooms of a two-story brick building situated on the south side of Railroad street in the city of Greensburg, said county and state, which building is commonly known as the National Hotel building, for the purpose of selling, bartering, delivering and disposing of intoxicating liquors as a beverage in violation of the laws of the State of Indiana, and the said Thomas Robbins and Gregg Alyea did then and there unlawfully keep, use, maintain and assist in maintaining said described premises as a place where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage in violation of the laws of the State of Indiana, and the said Thomas Robbins and Gregg Alyea did then and there unlawfully sell, barter, and give away, and assist in selling, bartering, and giving away intoxicating liquors to be drunk as a beverage in violation of the laws of the State of Indiana, and did then and there and thereby maintain and assist in maintaining a common nuisance, then and there being contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Indiana."
In support of his motion to quash the affidavit, the appellant insists that § 20 of ch. 4 of the acts of 1917, being § 8356t Burns' Supp. 1921, is unconstitutional and void; and that the affidavit does not state a public offense because said section is unconstitutional.
Appellant further claims that the facts stated in the affidavit do not constitute a public offense for the reasons that no facts are averred and set forth in the affidavit showing that the room or building which appellant was charged with maintaining and assisting in maintaining was kept, operated or maintained in a disorderly manner, and the appellant further claims that the affidavit does not state the offense with sufficient certainty because it does not state the kind...
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