State v. Dolan

Citation122 Ind. 141, 23 N.E. 761
Case DateFebruary 07, 1890
CourtSupreme Court of Indiana

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,

[23 N.E. 762]

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...

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17 practice notes
  • People v. Thiede, 567
    • United States
    • Supreme Court of Utah
    • 16 Marzo 1895
    ...but the court limits the rule to cases concerning the occupation or business against which the juror is prejudiced. State v. Dolan, 122 Ind. 141, 23 N.E. 761. But in the case at bar defendant's business was not upon trial, and was not involved in the case. One of the jurors in the case of S......
  • Douglas v. Indianapolis & N.W. Traction Co., No. 5,487.
    • United States
    • Indiana Court of Appeals of Indiana
    • 14 Febrero 1906
    ...de novo is a common-law remedy, and by it such defects only as may be apparent on the face of the record are presented. Dolan v. State, 122 Ind. 141, 23 N. E. 761;La Follette v. Higgins, 129 Ind. 412, 418, 28 N. E. 768. While there has been some modification of this remedy in respect to spe......
  • White v. State, 1584
    • United States
    • United States State Supreme Court of Wyoming
    • 18 Febrero 1930
    ...the word "operate" would seem to be the broader term, and certainly would include the idea of use. In State v. Dolan, 122 Ind. 141, 23 N.E. 761, the court, considering a criticism made concerning an indictment found touching an offense defined by statute, said this: "The firs......
  • Sides v. State, No. 49S00-9611-CR-730
    • United States
    • Indiana Supreme Court of Indiana
    • 3 Abril 1998
    ...6 Resolving this question of fact is not crucial, however, because Sides failed to raise his objection during trial. In State v. Dolan, 122 Ind. 141, 23 N.E. 761 (1890), this Court [I]t does not appear from facts, as stated in the motion, that any motion or request was made at the trial tha......
  • Request a trial to view additional results
17 cases
  • People v. Thiede, 567
    • United States
    • Supreme Court of Utah
    • 16 Marzo 1895
    ...but the court limits the rule to cases concerning the occupation or business against which the juror is prejudiced. State v. Dolan, 122 Ind. 141, 23 N.E. 761. But in the case at bar defendant's business was not upon trial, and was not involved in the case. One of the jurors in the case of S......
  • Douglas v. Indianapolis & N.W. Traction Co., No. 5,487.
    • United States
    • Indiana Court of Appeals of Indiana
    • 14 Febrero 1906
    ...de novo is a common-law remedy, and by it such defects only as may be apparent on the face of the record are presented. Dolan v. State, 122 Ind. 141, 23 N. E. 761;La Follette v. Higgins, 129 Ind. 412, 418, 28 N. E. 768. While there has been some modification of this remedy in respect to spe......
  • White v. State, 1584
    • United States
    • United States State Supreme Court of Wyoming
    • 18 Febrero 1930
    ...the word "operate" would seem to be the broader term, and certainly would include the idea of use. In State v. Dolan, 122 Ind. 141, 23 N.E. 761, the court, considering a criticism made concerning an indictment found touching an offense defined by statute, said this: "The firs......
  • Sides v. State, No. 49S00-9611-CR-730
    • United States
    • Indiana Supreme Court of Indiana
    • 3 Abril 1998
    ...6 Resolving this question of fact is not crucial, however, because Sides failed to raise his objection during trial. In State v. Dolan, 122 Ind. 141, 23 N.E. 761 (1890), this Court [I]t does not appear from facts, as stated in the motion, that any motion or request was made at the trial tha......
  • Request a trial to view additional results

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