Walters v. State
| Decision Date | 06 October 1910 |
| Docket Number | 21,661 |
| Citation | 92 N.E. 537,174 Ind. 545 |
| Parties | Walters v. The State of Indiana |
| Court | Indiana Supreme Court |
From Spencer Circuit Court; Roscoe Kiper, Judge.
Prosecution by the State of Indiana against Lindsay O. Walters. From a judgment of conviction, defendant appeals.
Affirmed.
Elbert M. Swan and William C. Mason, for appellant.
James Bingham, Attorney-General, E. M. White, A. G. Cavins and W H. Thompson, for the State.
Appellant seeks the reversal of a judgment convicting him of an unlawful sale of intoxicating liquor, and charges error in overruling his motions (1) to quash the affidavit, (2) for a new trial and (3) in arrest of judgment.
The material parts of the affidavit are as follows: That on August 13, 1908, at Spencer county, appellant "did then and there unlawfully sell to W. E. Clark, at and for the price of twenty-five cents, a less quantity than a quart at a time, to wit, one-half pint, of intoxicating liquor, to wit whisky; he, said Lindsay O. Walters being then and there the owner of a drug store where said intoxicating liquor was then and there sold and purchased, and said W. E. Clark not then and there having a written prescription of a reputable, practicing physician, and said Lindsay O. Walters not then and there receiving a written prescription of a reputable, practicing physician."
The charge is alleged to be insufficient because the full Christian name of the purchaser is not set out, his initials only being given.
Names of persons material to a criminal charge should ordinarily be fully stated in the pleadings; and under this rule an indictment containing only the initials of the given name of a defendant has been held fatally defective. Gardner v. State (1853), 4 Ind. 632; Burton v. State (1881), 75 Ind. 477.
The practice in this State, following the common-law rule, requires the names of third persons to be set out with reasonable certainty. It has accordingly been held that indictments charging the sale of liquors without license, and unlawful gaming, which entirely omitted the names of purchasers or persons engaged in the alleged games, were insufficient in the absence of an averment that the names of such persons were unknown. State v. Stucky (1829), 2 Blackf. 289; State v. Jackson (1835), 4 Blackf. 49; Butler v. State (1840), 5 Blackf. 280; State v. Irvin (1840), 5 Blackf. 343; Ball v. State (1844), 7 Blackf. 242; State v. Noland (1867), 29 Ind. 212; McLaughlin v. State (1873), 45 Ind. 338; Zook v. State (1874), 47 Ind. 463; Alexander v. State (1874), 48 Ind. 394.
A sale necessarily includes a buyer as well as a seller, and in attempting to allege a sale the buyer should be either specifically named, or otherwise identified with reasonable certainty. Facts must be alleged sufficient to show that an offense under the law has been committed, and fairly to apprise the accused of the charge which he is called upon to meet. The paramount fact contained in the charge against appellant was the unlawful dispensing of intoxicating liquors. The offense could not be aggravated or mitigated by the character of the purchaser, and his name is, in a sense, of secondary importance, since this proceeding cannot affect either his personal or property rights. It is manifest from the allegations of the affidavit that there was a sale of liquor, and the purchaser is designated. The only question then is whether the designation of the purchaser as "W. E. Clark" is sufficiently certain to apprise the accused fairly of the offense which he is called upon to answer. Appellant, as the proprietor of a drug store, could make a lawful sale of the kind and quantity of liquor described in the affidavit only upon the prescription of a physician. If the alleged sale was made upon a prescription it should be in appellant's possession, and would be available as a defense, whether the purchaser was designated therein as W. E. Clark or by his full Christian name. We are not warranted in presuming from the mere charge that appellant sold liquor in violation of law, and certainly cannot assume that so many illegal sales were made about the same time to the Clark family that the identification of the purchaser as W. E. Clark would not enable the seller to make suitable preparations for his defense. If a sale was in fact made, as alleged, without license, and without a physician's prescription, there could be no defense to present, and the transaction would be sufficiently identified to prevent any danger of a second prosecution for the same offense. We are led to the conclusion, therefore, that the failure to set out the full Christian name of the purchaser does not render the affidavit bad on motion to quash.
Appellant's counsel next contend that the allegation, "he, said Lindsay O. Walters, not then and there having a license to sell intoxicating liquors in a less quantity than a quart at a time," is not the direct averment of a fact, and is insufficient under the rules of criminal pleading. This averment only purports to negative an exception to the statute, or to deny the existence of facts constituting a defense. The State was not required to prove this negation, but if appellant had authority to make the sale of whisky, with which he was charged, it devolved on him to produce such authority in evidence. Under the circumstances, we are of the opinion that this allegation is sufficiently direct to resist appellant's attack. The charge that appellant sold a half pint of whisky without license constituted a crime, and we are not required to consider appellant's criticisms of the form and character of subsequent allegations in the affidavit. The motions to quash and in arrest of judgment were properly overruled.
The sale of the liquor involved in this prosecution was made by William P. Smoot, a clerk in appellant's drug store, when appellant was absent. Counsel challenge the admissibility of evidence detailing the transaction with Smoot, and assert that acts done and declarations made by a clerk in the commission of a crime, in the absence of his employer, are not admissible against such employer, unless it be shown that he consented to or had knowledge of such criminal acts. The following cases are cited in support of appellant's contention: LaFayette, etc., R. Co. v. Ehman (1868), 30 Ind. 83; Moore v. Shields (1889), 121 Ind. 267, 23 N.E. 89; Belcher v. State (1890), 125 Ind. 419, 25 N.E. 545.
These cases come far short of sustaining the position assumed by counsel. Appellant kept whisky in stock for sale, as shown by the evidence, and, in his absence, entrusted the care and conduct of the business to Smoot. In the exercise of its police power, the State has...
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