State v. Dolan

• Decision Date: 07 February 1890
• Citation: 122 Ind. 141,23 N.E. 761
• Parties: State v. Dolan.
• Court: Indiana Supreme Court

122 Ind. 141

23 N.E. 761

State

v.Dolan.

Supreme Court of Indiana.

Feb. 7, 1890.

Appeal from circuit court, Henry county; Eugene H. Bundy, Judge.

Mark E. Forkner, for appellant. L. T. Michener, Atty. Gen., for the State.

Olds, J.

This is a prosecution by indictment for the sale of intoxicating liquor in violation of section 2093, Rev. St. 1881. The indictment is in two counts. One count of the indictment charges the appellant with giving away to one Andrew Hines one gill of intoxicating liquor. The other count charges a sale of one gill of intoxicating liquor, “he, the said Andrew Hines, being a person in the habit of becoming intoxicated, and after due notice in writing had been given him, the said James Dolan, that the said Andrew Hines was then and there a person in the habit of becoming intoxicated, by one Anna Hines, who was, at the time of giving said notice, a citizen of the township in which said Andrew Hines, at the time of giving said notice, resided, to-wit, Henry township, in said county and state aforesaid.” There was a motion to quash the indictment overruled, and exceptions. There was a trial, and the defendant convicted. The appellant moved for a venire de novo, which was overruled, and exceptions. Appellant also moved for a new trial, which was overruled, and exceptions. Errors are separately assigned on the rulings of the court in overruling the motions to quash, for a venire de novo, and for new trial.

The first objection urged to the sufficiency of the indictment is as to the language used in charging that Andrew Hines was a person in the habit of being intoxicated. The statute makes it a misdemeanor to sell, barter, or give away intoxicating liquor to a person “in the habit of being intoxicated,” after notice, etc, and the indictment charges a sale to a person “in the habit of becoming intoxicated.” This objection is not well taken. While it may be the safer practice, in some instances, to follow the language of the statute, yet an indictment is sufficient if words conveying the same meaning as those of the statute creating the offense are used. Shepler v. State, 114 Ind. 194, 16 N. E. Rep. 521. Charging a sale to a person in the habit of “becoming intoxicated” is the same, in effect, as charging a sale to a person in the habit of “being intoxicated.”

It is further urged that the indictment is insufficient, for the reason that it does not aver that Hines was in the habit of being intoxicated at the time of the sale or gift of the liquor to him. It is contended that the indictment should aver that, both at the time the notice was given and at the time of the sale, the person was in the habit of becoming intoxicated. The statute makes the person selling or giving away intoxicating liquors to a person in the habit of being intoxicated, after having notice that such person is in the habit of being intoxicated,liable to a fine, to which imprisonment may be added; and the indictment avers facts which constitute an offense under the statute. It avers, as we construe it, that the appellant gave intoxicating liquor to Andrew Hines; that Hines was at the time a person in the habit of being intoxicated; and that notice had been given to the appellant, before the sale, that Hines was a person in the habit of being intoxicated. The indictment avers all that counsel for appellant claims it should, on that subject, to make it good. It avers that “James Dolan did then and there unlawfully give away to one Andrew Hines one gill of intoxicating liquor, he, the said Andrew Hines, being a person in the habit of becoming intoxicated.” It might have been averred that he, the said Andrew Hines, being a person in the habit of becoming intoxicated at the time the intoxicating liquor was given to him by said Dolan, or that he, the said Andrew Hines, being then and there a person, etc.; but the language used in the indictment is to the same effect, and charges that Hines was a person in the habit of becoming intoxicated at the time of the sale. There was no error in overruling the motion to quash the indictment.

The motion for venire de novo is verified by the defendant. The ground of the motion is that the jury were regularly sworn to try the issues joined in the cause before the defendant was arraigned and pleaded to the indictment, and that after the jury was sworn, and before any further steps were taken, the defendant was arraigned and pleaded not guilty. The record in the case shows the reverse of the facts stated in the motion. It shows that the defendant was first arraigned, and pleaded not guilty, and afterwards the jury was impaneled and sworn; and the record is conclusive, and the motion for a venire de novo was properly overruled. But, even if the record did not control, it does not appear from facts, as stated in the motion, that any motion or request was made at the trial that the jury be res worn, nor was there any objection made to proceeding with the trial, but without objection the defendant proceeded to trial; and he thereby...