Stout v. State

• Decision Date: 26 January 1884
• Docket Number: 11,373
• Citation: 93 Ind. 150
• Parties: Stout v. The State
• Court: Indiana Supreme Court

93 Ind. 150

Stout v. The State

No. 11,373

Supreme Court of Indiana

January 26, 1884

From the Monroe Circuit Court.

The judgment is affirmed, with costs.

J. R East, W. H. East and E. K. Millen, for appellant.

F. T Hord, Attorney General, and J. E. Henley, for the State.

OPINION

Howk C. J.

In this case the appellant was indicted, tried and convicted for the alleged commission of one of the misdemeanors defined in section 5320, R. S. 1881. From the judgment of conviction he has appealed to this court, and has here assigned as errors the following decisions of the circuit court:

1. The overruling of his motion to quash the indictment; and,

2. The overruling of his motion for a new trial.

In the indictment it was charged that the appellant, on the 1st day of September, 1883, in Monroe county, Indiana, "did then and there unlawfully sell to one John Ward certain intoxicating malt liquor, to be drunk, and suffered to be drunk, in the house, out-house, yard, garden and the appurtenances thereto belonging, of the said Daniel A. Stout, where the same was sold, to wit, one quart of malt liquor, commonly called 'beer,' at and for the price of fifteen cents, he, the said Daniel A. Stout, not then and there having a license to sell such intoxicating liquors to be drunk, or suffered to be drunk, in his said house, out-house, yard, garden or the appurtenances thereto belonging, contrary to the form of the statute," etc.

The first objection to the indictment, urged in argument by appellant's counsel is that it is bad for duplicity. There is no duplicity in the indictment. It charges but one unlawful sale of intoxicating liquor, made to one person, at one time, for one price. The charge that the one quart of liquor, thus sold, was sold to be drunk, and suffered to be drunk, in the appellant's house, out-house, yard, garden and the appurtenances thereto belonging, does not make the indictment bad for duplicity. In Stockwell v. State, 85 Ind. 522, the offence was charged in substantially the same manner as in the case at bar, and it was there held that there was no error in overruling a motion to quash the indictment.

Another objection urged to the indictment in this case is that it is not signed by the prosecuting attorney. Upon this point the appellant's counsel say: "It is true, the indictment has a pretended signature attached to it, as follows: 'Henry C. Duncan, Prosecuting Attorney, by Jos. E. Henley, deputy.' The statute requires the indictment to be signed by the prosecuting attorney. Sections 1669 and 1670, R.S. 1881." Counsel also say: "The prosecuting attorney is not authorized by law to sign an indictment by deputy." It is a sufficient answer to this objection to say that, in section 5568, R. S. 1881, it is provided that a prosecuting attorney may appoint a deputy; and section 5569 provides that such deputy may perform all the official duties of his principal. Therefore the indictment in this case was properly and legally signed.

Again, it is objected by the appellant's counsel that the record fails to show that the grand jury, who returned the indictment into court, were ever empanelled, and, therefore, it is claimed the motion to quash the indictment ought to have been sustained. Upon this point the showing in the record is as follows: "Come now the grand jury and return into open court the following indictments, numbered as follows, to wit: No. 15, being in the words and figures following, to wit." Then follows a copy of the indictment. After giving the venue and title of the cause, and the style and term of the court, the indictment proceeds as follows: "The grand jurors of Monroe county, in the State of Indiana, good and lawful men, duly and legally empanelled, charged and sworn to enquire into felonies and certain misdemeanors, in and for the body of said county of Monroe, in the name and by the authority of the State of Indiana, on their oath present," etc.

By these recitals in the record and indictment, it is sufficiently shown that the grand jury, who returned the indictment in this case, were duly and legally empanelled, when the question in regard to their empanelment is presented only by a motion to quash the indictment. In the recent case of Powers v. State, 87 Ind. 144, it was held by this court that where the record shows that the grand jury returned the indictment into open court, and the indictment itself states that the grand jury were duly empanelled, sworn and charged, the empanelling of the grand jury is sufficiently shown. This decision is conclusive of the point under consideration, adversely to the appellant.

The motion to quash the indictment in this case was correctly overruled.

In appellant's motion for a new trial, the only causes assigned therefor were that the finding of the court was not sustained by sufficient evidence, and that it was contrary to law. It is earnestly insisted by the appellant's counsel that the evidence was...