Woodworth v. State

• Decision Date: 22 November 1916
• Docket Number: No. 23077.,23077.
• Citation: 114 N.E. 86,185 Ind. 582
• Parties: WOODWORTH v. STATE.
• Court: Indiana Supreme Court

185 Ind. 582

114 N.E. 86

WOODWORTH

v.STATE.

No. 23077.

Supreme Court of Indiana.

Nov. 22, 1916.

Appeal from Circuit Court, Montgomery County; Jere West, Judge.

Fred Woodworth was convicted of unlawfully keeping, running, and operating a place where intoxicating liquors were sold in violation of law, and he appeals. Judgment affirmed.

Ira Clouser and Johnston & Johnston, all of Crawfordsville, for appellant. E. B. Stotsenburg, Atty. Gen., W. H. Linn, of Crawfordsville, and Thomas H. Branaman, of Brownstown, for the State.

LAIRY, J.

On the 3d day of May, 1915, appellant was charged by affidavit with violating the provisions of section 8351, Burns 1914, by selling to William Picket, on the first day of that month, two pints of beer without then and there having a license to sell intoxicating liquors. The affidavit was filed before the mayor of Crawfordsville, and on the same day it was filed appellant appeared and pleaded guilty, and was fined in the sum of $50.

Afterwards the grand jury of Montgomery county returned an indictment in the circuit court of that county in three counts, the third count of which charged that appellant, on or about the 17th day of May, 1915, unlawfully kept, ran, and operated a place therein described, located in the county of Montgomery where intoxicating liquors were sold, bartered, and given away in violation of law. The first two counts of the indictment were dismissed before the case went to the jury, and they need no further mention. Appellant was convicted on the third count. This appeal is taken from a judgment rendered on the verdict.

By his motion for a new trial appellant questions several rulings of the court made during the progress of the trial. It is asserted that the court erred in permitting witnesses to testify as to a transaction which occurred on the 1st day of May, 1915, on the premises described in the indictment as the place kept and operated by appellant for the unlawful sale of intoxicating liquors. The evidence in question shows that appellant on the 1st day of May sold two bottles of beer to William Picket, and that while he and a friend were drinking the beer on the premises two policemen, accompanied by the prosecuting attorney, entered the place, and, armed with a search warrant, searched for and found intoxicating liquors in an ice box. The mayor's docket was also in evidence, showing that appellant was charged with making an unlawful sale to William Picket on the 1st day of May, and that he pleaded guilty, and was fined.

Appellant contends that evidence of the sale made on the 1st day of May was not admissible to prove that he was engaged in operating a place where intoxicating liquors were sold in violation of law, for the reason that he had been once convicted and punished for making such sale, and that the state having elected to punish him once under one provision of section 8351 cannot punish him a second time for the same act under another provision of the same section.

[1][2][3] The fallacy of the argument in support of appellant's position consists in an assumption that the offense of selling intoxicating liquors without a license is the same offense charged in the third count of the indictment upon which appellant was convicted in this case. Section 8351, Burns 1914, defines two separate and distinct misdemeanors. By the first it is made a misdemeanor for an unlicensed person to sell or barter intoxicating liquors except as elsewhere provided, or to sell or barter such liquors and permit them to be drunk on the premises where sold. The offense thus defined is not a continuing one, as claimed by appellant, but each unlawful sale constitutes a separate offense. However, if a person in violation of this part of the section makes an unlawful sale of intoxicating liquors and permits them to be drunk on the premises, he commits but a single offense, and if he were convicted of making the unlawful sale he could not be again convicted of making the same sale and permitting the liquor to be drunk on the premises. Long v. State, 56 Ind. 182, 26 Am. Rep....