Walters v. State
| Decision Date | 13 October 1910 |
| Docket Number | No. 21,661.,21,661. |
| Citation | 174 Ind. 545,92 N.E. 537 |
| Parties | WALTERS v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Spencer County; Roscoe Kiper, Judge.
Lindsay O. Walters was convicted of an unlawful sale of intoxicating liquor, and he appeals. Affirmed.
Elbert M. Swan and Wm. C. Mason, for appellant. James Bingham, Alexander G. Cavins, Edward M. White, and Wm. 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 the 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 ($.25), a less quantity than a quart at a time, to wit: one-half pint of intoxicating liquor, to wit: whisky; he, the 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 the said W. E. Clark not then and there having a written prescription of a reputable, practicing physician, and the said Lindsay O. Walters not then and there receiving a written prescription of a reputable, practicing physician.”
The charge is alleged to be insufficient, first, because the full Christian name of the purchaser, Clark, is not set out, but his initials only are 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, 4 Ind. 632;Burton v. State, 75 Ind. 477. The practice in this state following the common-law rule requires the names of third parties 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, 2 Blackf. 289;State v. Jackson, 4 Blackf. 49;Butler v. State, 5 Blackf. 280;State v. Irvin, 5 Blackf. 343;Ball v. State, 7 Blackf. 242;State v. Noland, 29 Ind. 212;McLaughlin v. State, 45 Ind. 338;Zook v. State, 47 Ind. 463;Alexander v. State, 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 the 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 was 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, the prescription 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 given 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, the 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 on which this prosecution is founded was made by William P. Smoot, a clerk in appellant's drug store, at a time when appellant was not present. Counsel challenge the admissibility of evidence detailing the transaction with Smoot, and assert that acts and declarations of a clerk done and made 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., v. Ehman, 30 Ind. 83;Moore v. Shields, 121 Ind. 267, 23 N. E. 89;Belcher v. State, 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, intrusted the care and conduct of the business to Smoot. In the exercise of its police power, the state has prohibited the sale of intoxicating liquors, except under fixed restrictions. The regulations prescribedby law were designed by the Legislature to subserve the public welfare. This purpose is dominant, and its attainment must not be sacrificed, although in special cases individual inconvenience and loss be sustained. Criminal intent is not an essential ingredient of the offense charged against appellant. The law prohibits all persons without license from selling liquor either directly or indirectly, and is explicit and mandatory. When appellant elected to engage in the sale of articles subject to legal restrictions, he did so at his own peril, and cannot escape responsibility for the nonobservance of such regulations, on the ground that he did not knowingly violate the law. Groff v. State, 171 Ind. 547, 85 N. E. 769.
The law applicable to the question under consideration is aptly stated in Black on Intoxicating Liquors, § 370, as follows:
No error was committed in overruling appellant's objection to evidence of an illegal sale of liquor made in his absence by his clerk. Lehman v. Dist. of Columbia, 19 App. D. C. 217;Snider v. State, 81 Ga. 753, 7 S. E. 631, 12 Am. St. Rep. 350;Noecker v. People, 91 Ill. 494;State v. McConnell, 90 Iowa, 197, 57 N. W. 707; State v. Stewart, 31 Me. 515; Carroll v. State, 63 Md. 551, 3 Atl. 29;People v. Roby, 52 Mich. 577, 18 N. W. 365, 50 Am. Rep. 270;People v. Longwell, 120 Mich. 311, 79 N. W. 484;State v. Kittelle, 110 N. C. 560, 15 S. E. 103, 28 Am. St. Rep. 698, 15 L. R. A. 694;State v. Kinney, 21 S. D. 390, 113 N. W. 77;State v. Constatine, 43 Wash. 102, 86 Pac. 384, 117 Am. St. Rep. 1043;State v. Denoon, 31 W. Va. 122, 5 S. E. 315.
It is charged that the court erred in refusing to require witness Bays on cross-examination to answer the following question, and others of like substance, to wit: “Then you did induce him to violate the law in order that you might have the evidence, didn't you?” The witness had given the facts and admitted that he was in the employ of citizens of the community as a detective at the time the sale was made to Clark in his presence, and that Clark applied for the whisky in pursuance of a previous understanding between them. Manifestly no error was committed in excluding these questions, which were objectionable in form and the substance of which had already been covered by the witness.
Complaint is made of the giving and refusal of certain instructions, but no question concerning such instructions is presented, since we have before us no bill of exceptions...
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