Skelton v. The State

• Decision Date: 23 November 1909
• Docket Number: 21,487
• Parties: Skelton v. The State of Indiana
• Court: Indiana Supreme Court

89 N.E. 860

173 Ind. 462

Skelton v. The State of Indiana

No. 21,487

Supreme Court of Indiana

November 23, 1909

Rehearing Denied February 18, 1910, Reported at: 173 Ind. 462 at 467.

From Putnam Circuit Court; John M. Rawley, Judge.

Prosecution by The State of Indiana against John Skelton. From a judgment of conviction, defendant appeals.

Affirmed.

C. C Matson and Baker & Daniels, for appellant.

James Bingham, Attorney-General, A. G. Cavins, E. M. White and W H. Thompson, for the State.

OPINION

Montgomery, J.

Appellant was convicted of selling intoxicating liquor without a license, and has assigned errors upon the overruling of his motions, (1) to quash the affidavit, (2) for a new trial, and (3) in arrest of judgment.

The affidavit charged that at and in the county of Putnam on the 15th day of August, 1908, John Skelton did then and there unlawfully sell to Ed Hillis six gallons of beer for the sum of $ 2.50, said Skelton then and there not having a license to sell spirituous, vinous or malt liquors according to the laws of the State of Indiana.

The statute upon which the affidavit was founded reads as follows: "That any person not being licensed under the laws of the State of Indiana who shall sell or barter, directly or indirectly, any spirituous, vinous, or malt liquors except as herein provided, or who shall sell or barter, directly or indirectly any spirituous, vinous or malt liquors to be drunk, or suffered to be drunk in his house, outhouse, yard, garden or appurtenances thereto belonging, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than fifty dollars ($ 50) nor more than one hundred dollars ($ 100) for the first offense, and not less than one hundred dollars ($ 100) nor more than five hundred dollars ($ 500), to which the court or jury trying the case shall add imprisonment in the county jail of not less than thirty days nor more than six months for the second or any subsequent offense. 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, or any person who shall be found in possession of such liquors for such purpose shall be deemed guilty of a misdemeanor and upon conviction shall be fined in any sum not less than fifty dollars ($ 50) nor more than five hundred dollars ($ 500), to which the court or jury trying the case shall add imprisonment in the county jail of not less than thirty days nor more than six months: Provided, that none of the provisions of this act shall apply to any person, firm or corporation engaged as a wholesale dealer who does not sell in less quantities than five gallons at a time and provided that none of the provisions of this section shall apply to any druggist or pharmacist who is licensed as such by the state board of pharmacy: Provided, further, that a wholesale dealer as used in this act, shall be construed to mean a person, firm or corporation whose sole business in connection with the liquor traffic is to sell at wholesale to retail dealers licensed by the laws of the State, or to wholesale liquor dealers or to druggists or pharmacists who are licensed as such by the state board of pharmacy." § 8351 Burns 1908, Acts 1907, p. 689, § 1.

It is insisted that the words of the affidavit not licensed "according to" the laws of the State are not the equivalent of the language of the statute not licensed "under" the laws of the State. The facts constituting an offense must be averred in a criminal pleading with reasonable certainty; that is, with such certainty as to inform the accused of the nature of the offense preferred against him, and to enable the court and jury to understand distinctly what they are...