Skinner v. State

• Decision Date: 25 September 1889
• Citation: 22 N.E. 115,120 Ind. 127
• Parties: Skinner v. State.
• Court: Indiana Supreme Court

120 Ind. 127

22 N.E. 115

Skinner

v.State.

Supreme Court of Indiana.

Sept. 25, 1889.

Appeal from circuit court, Grant county; R. T. St. John, Judge.

Steele & Kersey, for appellant. L. T. Michener, Atty. Gen., for the State.

Coffey, J.

This was a prosecution by the state against the appellant, under section 2097, Rev. St. 1881, for keeping a disorderly liquor shop. That section provides that “whoever keeps a place where intoxicating liquors are sold, bartered, given away, or suffered to be drunk in a disorderly manner, to the annoyance or injury of any part of the citizens of this state, shall be fined for every day the same is so kept not more than one hundred dollars, nor less than ten dollars.” The indictment charges that the appellant, Allen Skinner, on the 1st day of June, A. D. 1888, and continuously thereafter to the day of making this indictment, at the county and state aforesaid, did then and there unlawfully keep a place, to-wit, a saloon, where intoxicating liquors were sold, bartered, and given away, and suffered to be drunk in a disorderly manner, and did then and there keep said saloon in a disorderly manner, by then and there unlawfully permitting and suffering divers persons, on week days and Sundays, by day and by night, to congregate in and about said saloon, and then and there make a great noise by yelling, quarreling, boisterous talking, fighting, swearing, and drunken rows, to the annoyance and injury of part of the citizens of said state, etc. The indictment was filed on the 8th day of September, 1888. Upon a plea of not guilty, the cause was submitted to a jury, who returned a verdict of guilty, assessing a fine against the appellant. Over a motion for a new trial, and a motion in arrest of judgment, the court rendered judgment on the verdict. The errors assigned are- First, that the facts stated in the indictment do not constitute a public offense; second, that the court erred in overruling the motion in arrest of judgment; third, that the court erred in overruling the motion of appellant for a new trial.

Under the first and second assignments of error it is contended by the appellant that the indictment above set out is defective in failing to aver that the saloon therein named was kept in any public place, or near any public highway, in any city, town, or village, or that any persons resided in the vicinity, or were in the habit of passing near it; and in support of his contention cites the case of Mains v. State, 42 Ind. 327. On the other hand, it is contended by the appellee that there is a distinction between the case at bar and the case of Mains v. State, supra, in this: that the acts named in the statute under consideration constitute the offense charged, and that hence it is sufficient to follow the language of the statute; while in the case of Mains v. State the offense sought to be charged was that of maintaining a public nuisance,-an offense known to the common law,-and hence it was necessary to aver facts which would have constituted a nuisance under the common-law definition of that crime. The general rule is that an indictment describing the offense in the language used by the statute in defining it is sufficient. State v. Bougher, 3 Blackf. 307; Pelts v. State, Id. 28; Marble v. State, 13 Ind. 362;Malone v. State, 14 Ind. 219;Stuckmyer v. State, 29 Ind. 20;Shinn v. State, 68 Ind. 423;State v. Allisbach, 69 Ind. 50;Howard v. State, 87 Ind. 68;Toops v. State, 92 Ind. 13;State v. Miller, 98 Ind. 70;State v. Berdetta, 73 Ind. 185. Some of the exceptions are where the statute creating the offense charged contains language which embraces acts evidently not intended to be made criminal, and cases where it was the evident intention of the legislature that reference should be had to the common law for a complete definition of the offense declared by the statute. Schmidt v. State, 78 Ind. 41; Moore, Crim. Law, § 171; Anderson v. State, 7 Ohio, 539; Mains v. State, supra. The case of Mains v. State falls within the latter exception. The statute under consideration does, in our opinion, create and fully define the offense for which the appellant was prosecuted. It declares that whoever keeps a place where intoxicating liquors are sold, bartered, given away, or suffered to be drunk in a disorderly manner, to the annoyance or injury of any part of the citizens of this state, shall be fined, etc. In such case we think it sufficient, in charging the violation of such statute, to follow the language of the legislature in defining the offense. We think the indictment above set out charges a public offense, and that the court did not err in overruling the motion in arrest of judgment.

The appellant assigned in the court below 19 reasons for a new trial; but we shall consider those only which he has seen fit to discuss in his able brief in the cause. It is earnestly insisted that the evidence in the cause does not tend to support the verdict of the jury; and it is urged, in support of this contention, that there is no evidence that any of the persons claiming to have been disturbed by the disorderly manner in which the saloon named in the indictment was kept were citizens of the state of Indiana. It appears from the evidence in the cause that the saloon in question is located on a public street in the town of Marion, in Grant county, Ind. Many of those claiming to have been disturbed by the disorderly manner in which the saloon was kept, testified that they resided in said town, and near the saloon; but none of them testified in direct terms that they were citizens of the state. The question is, was this evidence sufficient to authorize the jury to infer that these persons were citizens? Webster defines “citizen:” “(1) One who enjoys the freedom and privileges of a city; the freeman of a city as distinguished from a foreigner, or one not entitled to its...