State v. Culp, 2-981A330

• Decision Date: 12 April 1982
• Docket Number: No. 2-981A330,2-981A330
• Parties: STATE of Indiana, Appellant (Plaintiff below), v. Homer CULP and Rex Bouse, Appellees (Defendants below).
• Court: Indiana Appellate Court

Page 823

433 N.E.2d 823

STATE of Indiana, Appellant (Plaintiff below), v. Homer CULP and Rex Bouse, Appellees (Defendants below).

No. 2-981A330.

Court of Appeals of Indiana, Second District.

April 12, 1982.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellant.

David A. Feeback, Edris, Brown & Johnson, Bluffton, for appellees.

SHIELDS, Judge.

The State of Indiana (State) appeals pursuant to I.C. 35-1-47-2 (Burns Code Ed., Repl. 1979) from an order of the trial court granting appellees Homer Culp and Rex Bouse's motion to correct errors in a prosecution for public intoxication. I.C. 7.1-5-1-3 (Burns Code Ed., Supp.1981). ¹

We affirm.

On February 17, 1981 several police officers were summoned to a disturbance at an apartment house in Bluffton, Indiana. When the officers arrived at the scene they observed two tenants, Culp and Bouse, inside the apartment house seated near the top of a stairway leading to the second floor of the building. Both men were belligerent and appeared intoxicated. They were eventually placed under arrest for public intoxication. ²

At a trial before the court Culp and Bouse were found guilty of public intoxication and duly sentenced. A motion to correct errors followed. After a hearing the trial court granted the motion, vacated the judgment of conviction, and entered a finding of not guilty and judgment of acquittal for both charges of public intoxication. In granting the motion the trial court concluded Culp and Bouse, while intoxicated, were not in a "public place or place of public resort" within the meaning of I.C. 7.1-5-1-3.

The sole issue presented on appeal is whether the enclosed common hallway and stairway area of an apartment house is a "public place or place of public resort" within the meaning of our public intoxication statute. ³ This is a matter of first impression in this jurisdiction.

The State contends the common areas of the building are accessible to the several tenants and their guests, and to those providing services to the apartment dwellers. It further notes the manager of the building maintained no security system to restrict the general public from entering upon the common areas of the apartment house. Because these areas are so readily accessible, the State argues the appellees' behavior is precisely the kind of conduct the public intoxication statute seeks to proscribe. It cites State v. Siever, (1889) 117 Ind. 338, 20 N.E. 245, where our supreme court stated:

"The purpose of the law is to protect the public from the annoyances and deleterious effects which may and do occur because of the presence of persons who are in an intoxicated condition."

The State also relies upon Heichelbech v. State, (1972) 258 Ind. 334, 281 N.E.2d 102, where the supreme court held, albeit in dicta, an automobile service station is a business establishment open to the public and, although private property, it is a public place as contemplated within the statute.

We acknowledge in certain instances private property may qualify as a "public place or place of public resort." A business establishment, for example, which impliedly invites consumers to enter upon its premises may, under proper circumstances, be a "public place" within the ambit of the statute. Nevertheless, the weight of authority in Indiana leads to the inexorable conclusion the enclosed common areas of an apartment dwelling are not public areas or places of public resort within the meaning of our public intoxication statute. ⁴

It is well established in this state that a private residence, including the private grounds directly outside of it, is not a public place. State v. Sowers, (1876) 52 Ind. 311; Cornell v. State, (1980) Ind.App., 398 N.E.2d 1333, 1339 (Buchanan, C. J. dissenting opinion) (front yard of a private residence is not a public place). Nor does a residence lose its private character merely because a number of people may congregate there with or without invitation. As this court previously stated:

"A private residence is not a public place, in any sense of the term, and the mere suggestion of the fact is a sufficient argument to support it. We are unable to see how a private residence can be made a public place by a number of persons in the neighborhood gathering there, with or without invitation, to pass an evening in social intercourse and innocent amusement. Whether a place is public or not cannot be determined by the number of people who may gather there for some legitimate purpose, but by the place itself. Nor can it be determined by people freely and voluntarily congregating at their own pleasure, or by the invitation of others."

State v. Tincher, (1898) 21 Ind.App. 142, 51 N.E. 943. In addition, it has been held that a private road or way owned by a private corporation is not a public place for purposes of the public intoxication statute. State v. Moriarty, (1881) 74 Ind. 103. See also Cornell, (vehicle parked 20 feet from public road in lane entering private field is not in public place).

The fact a private residence in the instant case has been converted into an apartment house does not render it or its common areas a place of public resort. It is axiomatic in Indiana that a house used for a private residence does not lose its private character merely by the fact a number of people may gather there or have access to it. This applies with equal vigor to multiple unit dwellings. Unlike business enterprises, members of the public at large are not impliedly invited or encouraged to enter the common areas of an apartment house except when they have personal and private matters to conduct with the tenants. ⁵

We thus conclude the enclosed hallway and stairway areas of an apartment house are not public places within the context of our public intoxication statute. The trial court therefore properly granted appellees' motion to correct errors and entered a finding of not guilty and judgment of acquittal.

Judgment affirmed.

SULLIVAN, J., concurs.

BUCHANAN, C. J., dissents, with separate opinion.

BUCHANAN, Chief Judge, dissenting.

I dissent, because the hallway of an apartment building is a "public place" within the meaning of Indiana's public intoxication statute. To conclude otherwise is to uproot centuries of statutory and common law. The great Cardozo said, "What has once been settled by a precedent will not be unsettled overnight, for certainty and uniformity are gains not lightly to be sacrificed." ¹

Our public intoxication statute is the evolutionary product of laws enacted over two thousand years ago. ² A more recent precursor of modern public intoxication laws, whether classified as statutory or common law, is a statute enacted by England's Parliament in 1606. ³ The penalties under that statute were a fine and commitment to the stocks for six hours, penalties which led Blackstone to conclude that the statute "presumes the offender will have regained his senses, and not be liable to do mischief to his neighbors." ⁴ "This comment on the underlying purpose of this statute is important (because) (i)t is not the drunkenness but the injury to other persons, committed under the influence of alcohol that is relevant in law." Hall, Drunkenness as a Criminal Offense, supra at 297-98; Comment, The Law of Public Drunkenness, 34 Tenn.L.Rev. 490, 490-91 (1967); R. Perkins, Criminal Law 888-89 (2d ed. 1969)

Statutes descending from this 17th century English law have preserved the distinction between punishing intoxication itself and punishing public intoxication, which offends other citizens. ⁵ Thus, modern statutes prohibit intoxication in specific places, such as streets or alleys, or in "public places." See Annot., 8 A.L.R.3d 930 (1966).

Many states, including Indiana, have defined "public places" to mean a place where the public has a right to go or be. E.g., State v. Sowers, (1876) 52 Ind. 311. It "does not mean a place devoted solely to the uses of the public, but it means a place which is in point of fact public, as distinguished from private, a place that is visited by many persons and usually accessible to the neighboring public." R. Perkins, supra at 890. In so delimiting public intoxication, the statutes do "not apply to ... conduct unless it obtrudes itself offensively on the attention of others." R. Anderson, Wharton's Criminal Law & Procedure § 1021, at 216 (1957).

The courts, in determining whether certain conduct "obtrudes itself offensively on the attention of others" and therefore occurs in a place which is "in point of fact public," have disagreed whether the curtilage of a private residence is a public place. Compare State v. Sowers, supra (front yard of private residence not a public place), with People v. Olson, (1971) 18 Cal.App.3d 592, 96 Cal.Rptr. 132 (lawn, driveway, and front porch of private residence a public place). The differing opinions appear a result of differing interpretations of the words "public place"; for example, Indiana defines it as a place where the public has a right to go or be, whereas California defines it as a place which is accessible to the public.

In the context of the public intoxication statutes, however, a place where the public has a right to go or be includes a place which is accessible to the public, even though the reverse may not necessarily be true. A California opinion recognizes that the hallway of an apartment building is a public place. People v. Perez, (1976) 64 Cal.App.3d 297, 134 Cal.Rptr. 338. Not only is the hallway of an apartment building accessible to the public, it is a place where the public has a right to go or be. Intoxicated persons, be they tenants of the building or guests of tenants, are not guests of the remaining tenants. These remaining tenants are part of the "public" and should not be compelled to tolerate drunkenness in close proximity to their abode.

This construction of "public" is consistent with those opinions saying that common areas of hotels...