Thompson v. State

• Decision Date: 22 May 1925
• Docket Number: No. 24473.,24473.
• Parties: THOMPSON v. STATE.
• Court: Indiana Supreme Court

196 Ind. 229

147 N.E. 778

THOMPSON

v.STATE.

No. 24473.

Supreme Court of Indiana.

May 22, 1925.

Appeal from Circuit Court, Vanderburgh County; Wm. O. Bohannan, Judge.

Charles Thompson, Jr., was convicted of violating the prohibition law, and he appeals. Reversed, with directions.

W. D. Hardy, of Evansville, for appellant.

U. S. Lesh, Atty. Gen., for the State.

EWBANK, J.

[1][2] On May 1, 1923, an affidavit was filed charging that on April 14, 1923, the defendant (appellant) unlawfully maintained and assisted in maintaining a certain place, room, house, building, and structure located and known as No. 30 Lower Third street, in the city of Evansville, in Vanderburgh county, state of Indiana, where intoxicating liquors were then and there sold, bartered, and given away, in violation of law, and where they were kept to be drunk as a beverage by divers persons to the affiant unknown, and where said intoxicating liquors were then and there kept for sale, barter, and delivery, in violation of the law of this state, and where persons were then and there permitted to resort for the purpose of drinking intoxicating liquors as a beverage, and that the said defendant did then and there unlawfully keep intoxicating liquors in and use the same in maintaining said place. Overruling a motion to quash this affidavit is assigned as error. But, where either of two or more acts is declared by a statute to constitute the same offense, and is made punishable by the same penalty, an affidavit which, in the language of the statute, charges the doing of all such acts conjunctively is not bad for duplicity by reason of that fact. Lennard v. State, 191 Ind. 371, 372, 132 N. E. 677. And, since section 20, chapter 4, Acts 1917, p. 25 (section 8356t, Burns' Supp. 1921), declares any place of either kind mentioned in the affidavit to be a common nuisance if any of the acts charged in said affidavit are done therein and makes it a criminal offense to maintain such a place, the affidavit is not open to the objecttion of duplicity or uncertainty in the matter of describing the place alleged to have been maintained.

[3] Forbidding any person to keep a place where intoxicating liquor is sold, manufactured, bartered, or given away in violation of law is a matter properly connected with the subject of “prohibiting the manufacture, sale, gift, advertisement *** of intoxicating liquor,” as set out in the title of said act of 1917. Alyea v. State (Ind. Sup.) 147 N. E. 144.

Evidence was introduced to the effect that officers with a search warrant commanding them to search “the following premises, building, and all outbuildings commonly known as No. 30 Lower Third street, in the city of Evansville,” in Vanderburgh county, state of Indiana, for stills and devices for the manufacture of intoxicating liquor, and for such liquor being therein sold, bartered, and given away as a beverage; and being kept therein with intent so to sell, barter, and give them away in violation of the laws of this state, went to No. 30 on said street, where appellant was operating a “soft drink parlor,” and, after having read the warrant to him, searched the room in which soft drinks were sold, and the dining room immediately behind it which opened into it, and the kitchen behind that, being the dining room and kitchen of his residence; that on the drain board in the kitchen sink...