Welsh v. State

• Citation: 25 N.E. 883,126 Ind. 71
• Parties: Welsh v. State.
• Decision Date: 15 November 1890
• Court: Supreme Court of Indiana

126 Ind. 71

25 N.E. 883

Welsh

v.State.

Supreme Court of Indiana.

Nov. 15, 1890.

Appeal from circuit court, Harrison county; W. T. Zenor, Judge.

Charles D. Kelso, for appellant. J. L. Suddith, L. T. Michener, and J. H. Gillett, for the State.

Coffey, J.

This was a prosecution instituted by the state against the appellant, before a justice of the peace, for an alleged violation of the provisions of section 5320, Rev. St. 1881. That section provides that any person, not being licensed according to the provisions of the act of which it constitutes a part, who shall sell or barter, directly or indirectly, any spirituous, vinous, or malt liquors in a less quantity than a quart at a time, or who shall sell or barter any spirituous, vinous, or malt liquors to be drunk, or suffered to be drunk, in his house, outhouse, yard, garden, or the appurtenances thereto belonging, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined, etc. The affidavit in this cause charges that on, etc., at the county of Harrison, and state of Indiana, James Welsh did then and there unlawfully sell to one Andrew J. Glaze, at and for the price of five cents, a less quantity than a quart of beer, at a time, to-wit, one glass of beer containing a half pint; he (the said James Welsh) not then and there having a license to sell intoxicating liquors in a less quantity than a quart at a time, in force at the time, according to the laws of said state, contrary to the form of the statute in such cases made and provided, etc. The appellant was convicted before the justice, and appealed to the circuit court, where he was again convicted, and now appeals to this court, seeking a reversal of the judgment rendered against him in the circuit court.

His first contention is that the affidavit above set out is defective, because it is not charged that the beer therein named was malt beer, or that it was intoxicating. Section 5313, Rev. St. 1881, enacts that the words “intoxicating liquor” shall apply to all spirituous, vinous, or malt liquor, or to any intoxicating liquor whatever which is used or may be used as a beverage. In the case of Myers v. State, 93 Ind. 251, it was held by this court that the primary meaning of the word “beer” is fermented liquor made from any malted grain, with hops or other bitter flavoring matter; in other words, it means a malt liquor. The affidavit before us, therefore, charges that the appellant sold malt liquor, which is declared by our statute to be within the words “intoxicating liquor.” An affidavit like this, charging a person with the unlawful sale of “beer,” contrary to the form of the statute in such cases made and provided, is not, in our opinion, subject to the objection that it does not charge the sale of malt or intoxicating liquor. The court did not err in overruling the appellant's motion in arrest of judgment.

It is disclosed by the evidence in the cause that the beer in question was sold from a boat anchored in the Ohio river, near the south line of Harrison county, in this state. There is some conflict in the evidence as to whether the boat was anchored north or south of the line known as “low-water mark.” It is contended by the appellant that low-water mark on the Ohio river at this point is the southern boundary of the state, and that, for this reason, it does not appear that the beer was sold in Harrison county, or in the state of Indiana. Where the Ohio river constitutes the boundary between the states of Kentucky and Indiana, low-water mark on the north side of the river is the southern boundary of the state of Indiana. State of Indiana v. State of Kentucky, 10 Sup. Ct. Rep. 1051. But assuming that the appellant's boat, from which he sold the beer in question, was anchored south of the south line of the state, we do not think it follows that he may not be charged, tried, and convicted in Harrison county, Ind. Section 1, art. 14, of our constitution provides that the state shall be bounded on the south by the Ohio river, from the mouth of the Great Miami river to the mouth of the Wabash. Section 2 of the same article declares that the state shall possess jurisdiction and sovereignty co-extensive with the boundaries declared in the preceding section, and shall have concurrent jurisdiction in civil and criminal cases with the state of Kentucky, on the Ohio river, and with the state of Illinois, on the Wabash river, so far as said rivers form the common boundary between this state and said states respectively. Section 1578, Rev. St. 1881, provides that when an offense is committed in this state, or on the boundary thereof, on board a boat or vessel navigating a river, lake, or canal, or lying therein, the jurisdiction is in the county within or opposite to which the offense was committed. Section 1579 provides that the proper courts of the several counties in this state bordering on the Ohio river, and on the Wabash river so far as said river forms the boundary line between this state and the state of Illinois, shall have jurisdiction of all offenses committed against the penal laws of this state on said rivers opposite to said counties respectively. The right of the state of Indiana to exercise both civil and criminal jurisdiction concurrent with the state of Kentucky is secured by an act of the commonwealth of Virginia entitled “An act concerning the erection of the district of Kentucky into an independent state,” passed December 18, 1789, (1 Rev. Laws Va. p. 59.) By reason of the constitutional provisions above referred to, and statutory provisions similar to those here set out, it has been held by this court that, where a violation of the criminal laws of this state occurs on the Ohio river, it is proper to charge in the indictment that the offense was committed in the county opposite the place where the act was committed constituting the crime. Carlisle v. State, 32 Ind. 55; Dougan v. State, ante, 171, (at this term.) It will thus be seen that the criminal laws of the state extend to, and are in force on, the Ohio river where such river constitutes the southern boundary of the state.

The contention of the appellant that, because no provision is made, by law, for granting a license to sell intoxicating liquors upon the Ohio river, he has a right to sell without a license, is not tenable. As it is made unlawful to retail intoxicating liquor, within the jurisdiction of the state, without a license so to do, and as there is no law authorizing the granting of a license to...