Sumner v. The State
| Decision Date | 13 April 1892 |
| Docket Number | 470 |
| Citation | 30 N.E. 1105,4 Ind.App. 403 |
| Parties | SUMNER v. THE STATE |
| Court | Indiana Appellate Court |
From the Hancock Circuit Court.
Judgment affirmed.
W. F McBane, for appellant.
E. W Felt, Prosecuting Attorney, for the State.
This appeal is from a judgment convicting the appellant of an unlawful sale of intoxicating liquor to a minor.
But one question is presented by the record, and that relates to the sufficiency of the evidence to support the verdict.
James H. Barnett testified on behalf of the State that appellant was a saloon-keeper in Greenfield, Hancock county, Indiana and the witness was in his saloon in 1890 with one Walter Stewart, who was a minor; that Stewart invited the witness to drink at the bar, which he consented to do, and they each called for and received and drank a glass of beer; that appellant served the beer, and Stewart paid him two pool checks for it; that such checks were given to pool-players, and were good for five cents each, "in trade," at the bar.
Stewart testified that he was seventeen years old, and he remembered meeting Barnett in appellant's saloon and drinking with him at the bar; that witness invited Barnett to drink with him on that occasion; that witness called for and received a glass of soda or pop, and Barnett received a glass of beer, which they respectively drank; that witness paid appellant ten cents in cash for such drinks; that he had no pool checks because appellant refused to permit him to play pool in the saloon.
If the testimony of Barnett was true there should have been no conviction, because the charge is an unlawful sale of the liquor to Stewart, and the testimony of this witness shows an exchange for something besides money, which, under our statute, would constitute a barter. This variance would be fatal. Massey v. State, 74 Ind. 368; Gillam v. State, 47 Ark. 555, 2 S.W. 185.
Where one invites another to drink with him at a saloon, and each calls for and receives what he chooses to drink, he who does the inviting is the purchaser, if he pays for or becomes responsible for the liquor, and each drink is a separate and independent sale. Part may be delivered to the other upon the order, express or implied, of the one who gave the invitation, but it is none the less his purchase. Topper v. State, 118 Ind. 110, 20 N.E. 699; Klein v. State, 76 Ind. 333; Ward v. State, 45 Ark. 351.
If upon the other hand, the testimony of Stewart be accepted as true, the liquor furnished Barnett was a sale to the former under the rule above announced. Section 2094, R. S. 1881, declares that whoever directly or indirectly shall sell, barter or give away any intoxicating liquor to any person under the age of twenty-one years, shall be fined, etc. While it is admitted by appellant's counsel that Stewart's testimony proved a sale within the letter of this statute, it is insisted that because the liquor was delivered to and drank by Barnett, and was sold for that purpose, no offence was committed within the spirit and intent of the law. The case of Payne v. State, 74 Ind. 203, is relied upon as holding a sale of liquor to a minor is not interdicted by the statute unless the liquor was drunk by the minor as a beverage. That case declares that it is not an offense to sell liquor to a minor for sacramental, mechanical, medicinal or business purposes, but it goes no further. The sale in question was made for none of those purposes. If it had been, the purpose of the Legislature to have prohibited the sale of...
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