State v. Allen

• Decision Date: 14 May 1895
• Docket Number: 1,606
• Citation: 40 N.E. 705,12 Ind.App. 528
• Parties: THE STATE v. ALLEN
• Court: Indiana Appellate Court

40 N.E. 705

12 Ind.App. 528

THE STATE v. ALLEN

No. 1,606

Court of Appeals of Indiana

May 14, 1895

From the Montgomery Circuit Court.

Judgment reversed, with instructions to overrule the motion to quash.

W. A Ketcham, Attorney-General, and D. Kennedy, Prosecuting Attorney, for State.

J Wright and J. M. Seller, for appellee.

OPINION

LOTZ, J.

The appellee was indicted for selling liquor to a minor. The court sustained his motion to quash. This ruling is assigned as error in this court.

The indictment charges that "Stephen Allen, late of said county, on or about the 15th day of June, 1894, at said county and State aforesaid, did then and there unlawfully sell intoxicating liquors to one Avery Barnes, he, the said Avery Barnes, being then and there a person under the age of twenty-one years and a minor."

Section 2190, R. S. 1894 (section 2094, R. S. 1881), provides that whoever directly or indirectly sells, barters or gives away intoxicating liquors to any person under the age of twenty-one years shall be fined in any sum not more than $ 100 nor less than $ 20.

The indictment in this case follows substantially the language of the statute.

The general rule is that an indictment or information is sufficient to withstand a motion to quash if it charge the offense in the language of the statute or in terms substantially equivalent thereto. Trout v State, 111 Ind. 499, 12 N.E. 1005.

There are some exceptions to this rule, as where the language of the statute names or embraces some acts evidently not intended to be made criminal or where the language is so general that the evident intention of the Legislature was that reference should be had to the common law for a complete definition of the offense declared. In such cases it is necessary to go beyond the language of the statute in charging the offense. Schmidt v. State, 78 Ind. 41; Mains v. State, 42 Ind. 327; Skinner v. State, 120 Ind. 127, 22 N.E. 115.

It is the evident purpose of the statute on which this indictment is based to make all sales of intoxicating liquors to any person under the age of twenty-one years a criminal offense. There are no exceptions to the class of sales indicated. Nor does it seem necessary to resort to the common law for a complete definition of the offense. There is, however, no price for which the sale was made named in the indictment. It was held in an early case that an indictment for selling spirituous liquors at retail without a license which omitted to state the price for which the liquor was sold was bad on motion to quash. Divine v. State, 4 Ind. 240.

In that case the court made use of this language: "Every fact essential to be proved, should be alleged. Here the pleader alleges a 'sale,' which is a conclusion from the facts, and leaves the important element of price, a fact essential to support the idea of a sale, to be inferred. Perhaps, had all the facts been stated, the court might have considered it a barter. It is inverting the order of pleading to allege conclusions, and leave the facts to inference."

This decision has been frequently followed by the Supreme Court. Hare v. State, 4 Ind. 241; State v. Miles, 4 Ind. 577; Brutton v. State, 4 Ind. 601; Miles v. State, 5 Ind. 215; Segur v. State, 6 Ind. 451; State v. Downs, 7 Ind. 237; Hubbard v. State, 11 Ind. 554; Eagan v. State, 53 Ind. 162; State v. Jacks, 54 Ind. 412.

At the time these decisions were made the ninth subdivision of section 1825, R. S. 1894 (section 1756, R. S. 1881), was not in force. It is there provided that no indictment or information shall be deemed invalid or quashed for omitting to state the value or price of any matter or thing in any case where the value or price is not of the essence of the offense. Our attention has not been called to any case decided by the Supreme Court since the taking effect of this provision in which it has been held necessary to state the price in order to make a good charge.

The appellee, however, cites and relies on the case of Hatfield v. State, 9 Ind.App. 296, 36 N.E. 664, in which this court, following the case above cited, made use of this language: "A sale or a barter can not be charged in general terms, for it would be but stating a conclusion. The facts constituting the sale or barter must be set forth."

As the indictment in that case did charge a sale in general terms and followed it up by averring the price, it unquestionably charged a sale. What the court said as above quoted was obiter. The purpose of an indictment or information is, first, to inform the court of the facts alleged so that it may decide whether or not they are sufficient in law to support a conviction, and, second, to furnish the accused with such a description of the charge against him as...