Terre Haute Brewing Company v. The State

• Citation: 82 N.E. 81,169 Ind. 242
• Decision Date: 31 October 1907
• Docket Number: 21,027
• Parties: Terre Haute Brewing Company v. The State
• Court: Supreme Court of Indiana

82 N.E. 81

169 Ind. 242

Terre Haute Brewing Company v. The State

No. 21,027

Supreme Court of Indiana

October 31, 1907

From Owen Circuit Court; Henry A. Lee, Special Judge.

Prosecution by the State of Indiana against the Terre Haute Brewing Company. From a judgment of conviction, defendant appeals.

Reversed.

O Matthews, N. A. Whitaker and J. R. Miller, for appellant.

James Bingham, Attorney-General, Alexander G. Cavins, Edward M White and Henry M. Dowling, for the State.

Montgomery J. Jordan, J., did not participate in this decision.

OPINION

Montgomery, J.

Appellant was convicted of erecting and maintaining a public nuisance. It is charged that the trial court erred in overruling appellant's motions (1) to quash the indictment, (2) for a new trial, (3) in arrest of judgment, and (4) to modify the judgment.

The indictment is in two counts, differing only in the fact that the second describes the premises with particularity. The first count, omitting the formal parts, is as follows: "That the Terre Haute Brewing Company, a corporation, and George Teagarden, late of said county and State aforesaid, did then and there and on divers other days before and since said time up to the date of making this presentment, unlawfully erect, continue, use and maintain a certain building at said county, to wit, on West Franklin street, commonly known as Railroad street, * * * in the town of Spencer, said county and State, at, near and among the dwelling-houses and residences of many and divers inhabitants of said town, which building is so erected. continued, used and maintained by the defendants as a pretended wholesale house, or barrel house, for the unlawful sale of beer and its delivery, distribution and consumption by persons not retailers of such liquor, and, that the use of said building for the transaction of the business aforesaid, as there so done, occasions noisome and offensive smells, which become injurious to the health, comfort and property of the individuals being and living at, near and about such property, and to the public, and causes hallooing, swearing, drinking, and lewd, lascivious acts of immorality on such premises and in and about such building, all the fault and by permission of the defendants, and causes the loading, unloading and delivery of beer for and on behalf and at the request of these defendants, whereby by reason of said facts so set out and each of them the property of the inhabitants there living is injured in value, their comfortable enjoyment of life prevented, and their health and the health and comfort of the public there passing along and upon such highway and street there situate endangered, while the free use of the property of said inhabitants is thereby obstructed and the comfortable enjoyment thereof prevented, to the great damage and common nuisance of all the inhabitants of said town and State there being and residing and passing through and along and upon said street."

The gravamen of the offense attempted to be charged, as we interpret this pleading, was the conduct of an unlawful liquor business. The essence of the charge, in brief, is that appellant erected, used and maintained a certain building as a wholesale house, or "barrel house," for the unlawful sale of beer to persons not retailers of such liquors. The use of the word "unlawful" in this connection adds nothing to the force of the pleading. The theory of the pleader appears to have been that a sale of five gallons or more of liquor by a wholesale dealer to a consumer would be a violation of the license laws of this State. This assumption is clearly erroneous. Sales of liquor in quantities of five gallons or over at a time may be lawfully made by wholesale dealers to any person, whether such person be another wholesaler, a jobber, retailer or consumer, without subjecting the seller to the provisions of our license laws. State v. Bock (1906), 167 Ind. 559, 79 N.E. 493.

This indictment purports to charge only that purchasers were not...