State v. Tincher

• Decision Date: 15 November 1898
• Docket Number: 2,838
• Citation: 51 N.E. 943,21 Ind.App. 142
• Parties: THE STATE v. TINCHER
• Court: Indiana Appellate Court

51 N.E. 943

21 Ind.App. 142

THE STATE v. TINCHER

No. 2,838

Court of Appeals of Indiana

November 15, 1898

From the Sullivan Circuit Court.

Affirmed.

W. A Ketcham, Attorney-General, Merrill Moores and Charles D Hunt, for State.

W. S Maple, for appellee.

OPINION

WILEY, J.

This case is before us on a reserved question of law. The appellee was indicted for having been found in a state of intoxication in a public place, and on a plea of not guilty, the cause was submitted to a jury for trial, and under an instruction of the court a verdict of acquittal was returned. The public place at which the appellee was charged to have been found in a state of intoxication was, in the language of the indictment, "at a public assemblage at the residence of James Williams," in Sullivan county, Indiana.

The facts disclosed by the record are as follows: There was an ice cream supper and a dance at the private residence of one James Williams, and from seventy-five to one hundred persons were in attendance. The record does not disclose whether the general public were invited, or whether those in attendance were there by special invitation. The two witnesses who testified in the case stated that they were not invited specially to the supper, but went because they had heard there was to be such a supper. They did not know whether other persons were specially invited or not. The record shows that there was an ice cream stand out in the yard, near a public highway, where ice cream and other refreshments were sold. The State offered to prove by two witnesses that the appellee attended the supper, and while there was in a state of intoxication. The court excluded all evidence offered by the State to prove the intoxication of the appellee; such evidence being excluded, as shown by the record, on the ground that the "defendant was not in a public place when at said supper and dance." Following the exclusion of this offered evidence, the record recites that "the prosecuting attorney thereupon stated to the court that all the evidence the State had and proposed to introduce in this case relative to the defendant's being in a state of intoxication, tended to show the defendant's condition at Williams' at the supper and dance, and that the State had no evidence of his intoxication at any other place. Whereupon the court excluded the evidence showing the defendant's intoxicated condition at the supper and dance, and announced and ruled that said supper and dance did not constitute a public place." To this ruling the State excepted, and has properly presented the question by a bill of exceptions. We have therefore for our decision this question: Did the private residence of James Williams, which was in the country, and at which a number of persons had gathered to attend an ice cream supper and dance, constitute a public place within the meaning of section 2091, Horner's R. S. 1897?

The appellee has not favored us with a brief. "The term 'public place' is a relative one. What is a 'public place' for one purpose is not for another. * * * A place which is public in one community is not necessarily so in another." 19 Am. & Eng. Ency. of Law, p. 563. In Cahoon v. Coe, 57 N.H. 556 it was said: "The term public place, as used in the statute, is relative. What might be a public place in a crowded and populous city, and what would be a public place in a small town, sparsely inhabited, are entirely different questions." In Parker v. State, 26 Tex. 204, it was said: "'A public place' 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." In Alabama there is a statute prohibiting cock-fighting in a public place, and providing a punishment for its violation. In Finnem v. State, 115 Ala. 106, 22 So. 593, appellant was indicted for violation of such statute. It was shown that the cock-fight took place in an old field grown up with bushes, etc., about one-fourth or one-half mile from the public road. The appellant requested the court to give the following instructions: (1) "I charge you that a place in the thick woods, one-half mile from any public highway, or...