(147 N.E.) leading where different acts in evidence con- common nuisance. The affidavit was predistituted only one offense. cated on section 20 of the Prohibition Law, Error in instruction that accused charged with maintaining or assisting in maintaining common nuisance within Prohibition Law, § 20, "and with reference to the possession and use of intoxicating liquor," because of inaccuracy of quoted words was not reversible, since rest of instruction that accused should not be convicted unless evidence showed beyond reasonable doubt that he was guilty of offense charged, and that evidence should be considered solely for such purpose, correctly stated law. 9. Intoxicating liquors 239 (8)-Instruction relating to maintenance of common nuisance within Prohibition Law held correct. Instruction that possession, sale, and delivery of whisky in premises alleged to be common nuisance, and accused's maintenance or assistance in maintaining such premises as common nuisance would justify conviction for violating Prohibition Law, § 20, held correct, and was not objectionable as stating that single sale or gift of liquor would justify conviction. 10. Criminal law 829(1)-Refusal of instructions covered by instructions given held not error. Refusal of accused's requested instructions covered by instruction's given by court on its own motion was not error. chapter 4, Acts of 1917. He was tried separately by jury and was found guilty. The affidavit, omitting the caption, signature, and jurat, is as follows: day "Hugh Flint being duly sworn upon his oath says that on or about the day of November, 1922, and on or about the of December, 1922, and on or about the day of March, 1923, at and in the county of Decatur and state of Indiana, Thomas Robbins and Gregg Alyea did then and there unlawfully, keep, use, maintain, and assist in maintaining certain rooms, to wit: The first or ground-floor rooms of a 2-story brick building situated on the south side of Railroad street in the city of Greensburg, said county and state, which building is commonly known as the National Hotel building, for the purpose of selling, bartering, delivering, and disposing of intoxicating liquors as a beverage in violation of the laws of the state of Indiana, and the said Thomas Robbins and Gregg Alyea did then and there unlawfully keep, use, maintain, and assist in maintaining said described premises as a place where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage in violation of the laws of the state of Indiana, and the said Thomas Robbins and Gregg Alyea did then and there unlawfully sell, barter, and give away, and assist in selling, bartering, and giving away intoxicating liquors to be drunk as a beverage in violation of the laws of the state of Indiana, and did then and there and thereby maintain and assist in maintaining a common nuisance, then and there being contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Indiana." From the evidence it appears that the defendant Robbins had a written lease for the II. Intoxicating liquors 167-Evidence that National Hotel building in the city of Greensaccused made several sales justified convic-burg where a hotel was conducted; that both tion for maintaining and assisting in main- defendants spent much time there; that in taining common nuisance. one of the ground floor rooms of the said hotel building, there were pool tables and a bar where soft drinks were sold; that both defendants sold "white mule whisky" to various customers in said room; that sometimes the customers would be taken into an adjoining room where liquor would be sold to them; that when whisky was sold by appellant by Evidence that accused made several sales of whisky on different days on premises maintained as common nuisance, in violation of Prohibition Law, § 20, justified his conviction for maintaining and assisting in maintaining common nuisance, notwithstanding he was not owner of premises. Appeal from Circuit Court, Decatur Coun- the drink, he took the bottle containing same ty; Jno. W. Craig, Judge. Gregg Alyea was convicted of maintaining and assisting in maintaining a common nuisance in violation of Prohibition Law, § 20, and he appeals. Affirmed. and a glass from his pocket and served the whisky, charging 25 cents for each drink; that appellant also sold "white mule whisky" by the half pint, charging $1.50 for each half pint; that appellant was present when his codefendant Robbins sold liquor at various Wickens & Hamilton, of Greensburg, for times, and that when the latter was absent, appellant. U. S. Lesh, Atty. Gen., for the State. GEMMILL, J. Appellant and another were charged by affidavit with the offense of maintaining and assisting in maintaining a the appellant was in charge of the place. In his assignment of errors, the appellant claims as follows: That the court erred in overruling appellant's motion to quash the affidavit, and that the court erred in overruling his motion for a new trial. The motion For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 147 N.E.-10 to quash the affidavit is for the following | law. The subject of said section 20, defining reasons: "The facts stated in said affidavit what is a common nuisance in relation to indo not constitute a public offense, and the affidavit does not state the offense charged with sufficient certainty. Under the second specification various reasons are given. toxicating liquor, and providing a penalty for maintaining or assisting in maintaining same is germane to the general subject of the act. The provisions of the said section are covered by the title of the act, and section 20 is constitutional. [1, 2] Appellant contends that the facts stated in the affidavit do not constitute a public offense, because section 20 of chapter [3-5] Appellant says that the affidavit does 4 of the Acts of 1917, said chapter being the not state a public offense for the reason that Prohibition Law, is void, being in contraven- no facts are averred or set forth in same tion of section 19 of article 4 of the state showing that the rooms which appellant was Constitution, which provides that every act charged with maintaining and assisting in shall embrace but one subject and matters maintaining were kept, operated, or mainproperly connected therewith, which subject tained in a disorderly manner, and without shall be expressed in the title, and that said such facts being stated, the affidavit failed to section 20 attempts to define the additional state a public offense. Said section 20 defines offense and crime of maintaining a common the offense of a common nuisance, and does nuisance, and that because there is nothing in not provide that the place be kept in a disthe title of the act which gives any intima- orderly manner in order to constitute a nultion of such legislative intent, or to indicate sance. A person who keeps a place where inthat the offense of a common nuisance is in- toxicating liquors are sold in violation of cluded in the body of the act, said section is the law is guilty of the offense defined in said unconstitutional and void. This court has section 20. Thompson v. State (1920) 189 Ind. held that said chapter 4 of the acts of 1917 182, 186, 125 N. E. 641. In a prosecution for is not violative of article 4, section 19, of the violation of section 20 of the Prohibition Act, Constitution. Schmitt, Supt., v. F. W. Cook proof that the defendant maintained the Brewing Co. (1918) 187 Ind. 623, 120 N. E. 19, place where persons were permitted to resort 3 A. L. R. 270; James v. State (1919) 188 for the purpose of drinking intoxicating liqInd. 579, 125 N. E. 211. In Crabbs v. State uors as a beverage was sufficient. Shelton v. (1923 Ind. Sup.) 139 N. E. 180, 182, it is stat-State (1921) 191 Ind. 228, 231, 132 N. E. 594. ed that if the title to an act covers a general In claiming that the affidavit does not state subject, it need go no further and mention all matters that are germane to such subject, nor is it necessary that details be mentioned in the title of the act. "It is also the settled rule that the title of an act is to receive a liberal construction if necessary to sustain the legislative intent. A critical construction will not be made of the title to hold a statute unconstitutional, but on the contrary the language used is in all cases given a liberal interpretation and the largest scope accorded the words employed that reason will permit in order to bring within the purview of the title all the provisions of the act." State v. Closser (1912) 179 Ind. 230. 235, 99 N. E. 1057, 1059; citing Hargis v. Board, etc. (1905) 165 Ind. 194, 73 N. E. 915; Board, etc., v. Albright (1907) 168 Ind. 564, 81 N. E. 578; and State ex rel. v. Bartholomew (1911) 176 Ind. 182, 95 N. E. 417, Ann. Cas. 1914B, 91. The title to the said Prohibition Act is as follows: "An act prohibiting the manufacture, sale, gift, advertisement or transportation of intoxicating liquor except for certain purposes and under certain conditions." The general subject of the act is to prohibit certain acts in regard to intoxicating liquors. The section in question was enacted to prevent the selling, manufacturing, bartering, or giving away of intoxicating liquor in violation of law. The legislative intent for including said section is plain, and it is closely related to the other parts of the the offense charged with sufficient certainty, The motion for a new trial sets out 14 causes for same, 12 of which relate to the giving or refusing to give certain instructions to the jury, and the others are that the verdict of the jury is contrary to law and is not sustained by sufficient evidence. [6] Appellant's objections to certain in (147 N.E.) structions given by the court upon its own motion, for the reason that same are based upon section 20 of the Prohibition Act, are not well taken. [9] Instruction No. 10, reads as follows: "If you find from the evidence beyond a reasonable doubt that the defendant Gregg Alyea had white mule whisky in his possession and Instruction No. 3 given by the court upon sold or delivered to other persons quantities its own motion, reads as follows: "In this case the defendant is not bound to prove anything. The burden is upon the state to establish his guilt as to one or the other offenses as defined to you in this case, beyond a reasonable doubt, whether or not he explains to your satisfaction any fact or facts proven against him." Appellant says that this instruction is vague and indefinite and calculated to mislead the jury to appellant's prejudice. The instruction mentions "one or the other offenses." There was only one offense charged by the affidavit, but it charges different acts thereunder, any one of which would constitute the offense. We believe that the instruction is definite, and that the jury could not have been misled thereby to appellant's prej udice. [7, 8] Appellant asserts that instruction No. 8, given by the court upon its own motion, is erroneous. Same is as follows: "The defendant stands charged in this case with the offense of maintaining or assisting in maintaining a common nuisance, as defined by statute and in these instructions, and with reference to the unlawful possession and use of intoxicating liquor. Even though you may believe him guilty of having committed some other crime, you cannot convict him in this case unless you find from the evidence beyond a reasonable doubt that he is guilty of the offense as charged herein. Evidence with reference to sales of liquor by this defendant and by the defendant Thomas Robbins should be considered by you only for the purpose of determining whether or not the defendant Gregg Alyea did, as charged in the affidavit, maintain or assist in maintaining the said rooms for the purpose of keeping, selling or permitting others to drink intoxicating liquors in said room in violation of the law and for no other purpose." The objection is to the following part of same: "And with reference to the unlawful possession and use of intoxicating liquor." Said part of the instruction is not accurate. However, it is the rule that error in a particular instruction will not justify a reversal unless it is of such a nature as to vitiate the whole charge and to mislead the jury as to the law of the case. Shields v. State (1897) 149 Ind. 395, 406, 49 N. E. 351; Indianapolis Traction, etc., Co. v. Thornburg (1920) 74 Ind. App. 642, 646, 125 N. E. 57. The remainder of said instruction is correct and complete. We believe that the jury could not have been misled as to the law by the erroneous part of said instruction. of said white mule whisky at and in said rooms as described in the affidavit herein, then I instruct you that such acts constitute a violation of law with respect to the possession, sale, and delivery of intoxicating liquor; and if you further find from the evidence beyond a reasonable doubt that said defendant kept and maintained or assisted in keeping and maintaining said rooms in the manner and form as alleged in the affidavit and that such place was so maintained by him, or he so assisted in maintaining the same for the keeping, sale or drinking of such intoxicating liquor, in violation of law as above defined, that is sufficient in that respect to justify a conviction." Appellant claims that this instruction informed the jury that a single sale or gift of intoxicating liquor, together with evidence that defendant maintained or assisted in maintaining the room, was sufficient to justify a conviction. We do not agree with this contention of appellant, and we are of the opinion that this instruction is a correct. statement of the law. [11] Appellant says that there is no evidence that he was maintaining or assisting in maintaining the rooms to such an extent as would render him liable under the law; that the utmost that can be claimed for the state's evidence is that he made one or two sales of liquor, and that, if any one was guilty of the charge, it was the owner and operator of the premises and not the appellant. It is shown by the evidence that appellant made several sales of whisky and on different days in the rooms described in the affidavit. In the case of Vesely v. United States (C. C. A.) 276 F. 693, it was held that where there was evidence showing the defendant sold whisky at a buffet on a number of days to a certain person, he was properly prosecuted and convicted as a principal under an information charging him with the unlawful maintenance of a place for the sale of intoxicating liquors, though he was not shown to be the proprietor of the place where he sold the liquor. There is evidence proving all the material allegations of the affidavit. The verdict of the jury is sustained by sufficient evidence and is not contrary to law. The judgment is affirmed. MYERS, J., not participating. JULIAN et al. v. BLISS et al. (No. 11850.) (Supreme Court of Indiana. March 31, 1925.) 1. Courts 487(5)-Supreme Court, on petition to transfer cause, cannot examine record to determine whether reasons assigned are sustained. reasons relied on by the petitioners are: (1) That the evidence set forth in the opinion does not justify the inference drawn therefrom by the Appellate Court, and hence that court's decision contravenes rulings precedent of the Supreme Court, citing Anderson v. Anderson, 126 Ind. 62, 67, 24 N. E. 1036, and many other Indiana cases; (2) that a new question of law was involved, presented and decided by the Appellate Court. On this point, petitioners request that we consider their original briefs, and their petition which On petition for transfer of cause from appellate court to Supreme Court under Burns' Ann. St. 1914, § 1394, cl. 2, Supreme Court is not authorized to examine record to determine whether reasons assigned for transfer are sustained, but must look only to opinion, and ac-purports to furnish additional evidence not cept statements and facts therein as correct found in the Appellate Court's opinion. exposition of record. Appeal from Circuit Court, Cass County; Paul M. Souder, Judge. [1] The statute, supra, has been many times considered by this court, and the rule invariably followed is, that "we are not authorized to examine the record in order to decide whether the reasons assigned for the transfer are sustained" (City of Huntington v. Lusch, 163 Ind. 266, 71 N. E. 647), but we must look to the face of the opinion, and accept the statements and facts therein as a correct exposition of the record. City of Huntington v. Lusch, supra, and cases there cited. [2] The object, then, of a petition to transfer is to submit to the consideration of the Supreme Court certain legal principles declared by the Appellate Court in a particular case upon the record furnished by the opinion, and not a review of the case upon its merits. Grand Rapids, etc., R. Co. v. Railroad Com., etc., 167 Ind. 214, 78 N. E. 981; In re Aurora Gaslight, etc., Co., 186 Ind. 690, 115 N. E. 673. [3] The cases cited by petitioners all recognize the undoubted correct rule, that either Suit by Simeon M. Bliss against Sarah Ju- actual or constructive delivery of a deed by lian and others, in which Edward B. Bliss the grantor to the grantee, with the intention filed cross-complaint. Decree for named de- of relinquishing all control over it, is an esfendant on his cross-complaint was, on ap-sential element of its validity as an instrupeal by complainants and certain defendants, ment transferring title to real estate. In the affirmed (145 N. E. 442). On petition to instant case, it seems that the only disputed transfer from the Appellate Court to the Su-issue at the trial was whether or not the preme Court under clause 2, § 1394, Burns' Ann. St. 1914. Petition to transfer denied. lants. Kistler, Kistler & McHale, of Logansport, for appellees. deed in question had been delivered. This was a mixed question of law and fact. The Appellate Court, in its opinion, calls attention to evidence, which it held sufficient to support the finding of the trial court. Confining ourselves to the record as disclosed by the opinion which is challenged by the petitioners, we cannot say that the Appellate MYERS, J. Appellants petition for a trans- Court thereby contravened rulings precedent fer of this cause from the Appellate Court to of this court in the cases cited, or that it this court, assigning as reasons therefor the decided a new question of law erroneously. two grounds mentioned in the statute. For the reasons thus briefly stated, the Clause 2, § 1394, Burns' 1914. The specific petition to transfer is denied. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes JALBERT v. STATE. (Nos. 24713, 24714.) (147 N.E.) (Supreme Court of Indiana. April 3,, 1925.) 1. Indictment and information 110(31)Affidavit charging maintenance of liquor nuisance in language of statute is sufficient. Affidavit charging maintenance of liquor nuisance in language of Burns' Ann. St. Supp. 1921, § 8356t, is sufficient. 2. Indictment and information 87 (6)Charge of maintaining liquor nuisance "on or about" named day held not insufficient on theory that offense was continuing one. Under Burns' Ann. St. 1914, §§ 1890, 2046, 2063, affidavit charging maintenance of liquor nuisance "on or about 11th day of February, 1924," held not insufficient, on theory that maintenance of nuisance is continuing offense; it being unnecessary to state precise time of commission of offense, except time be an indispensable ingredient thereof. Appeal from Circuit Court, Vigo County; Jno. P. Jeffries, Judge. Virgil Jalbert and Clifford Caldwell were convicted of violation of the Prohibition Law, and they appeal. Affirmed. [1] The affidavit follows the language of the statute. Section 8356t, Burns' Supp. 1921 (section 20, c. 4, p. 25, Acts 1917). This has been held sufficient. James v. State, 88 Ind. 579, 581, 125 N. E. 211. [2] Appellant points out that the affidavit only charges the offense to have been committed "on or about the 11th day of February, 1924," and insists that maintaining a nuisance is a continuing offense. But, assuming this to be true, the statute expressly provides that: "The precise time of the commission of an offense need not be stated in the indictment or affidavit, but it is sufficient if shown to have been within the statute of limitations, except in the offense." where the time is an indispensable ingredient Section 2046, Burns' 1914 (section 175, c. 169, p. 622, Acts 1905). "No indictment or affidavit shall be deemed invalid, nor shall the same be set aside or quashed, nor shall the trial, judgment or other Miller & Kelley, of Terre Haute, for ap- proceeding, be stayed, arrested or in any manpellants. U. S. Lesh, Atty. Gen., for the State. ner affected for any of the following defects: * * "Eighth. For omitting to state the time at which the offense was committed, in any case in which time is not the essence of the offense, time is of the essence of the offense. or for stating the time imperfectly, unless Section 2063, Burns' 1914 (section 192, c. 169, p. 625, Acts 1905). * * And the charge that a nuisance was main EWBANK, J. These are companion cases. In each an affidavit was filed, the first count of which named Vigo county, in the state of Indiana, and alleged that the defendant "on or about the 11th day of February, A. D. 1924, at said county and state aforesaid, did then and there unlawfully keep. maintain, and assist in keeping and maintained on a specified day, less than two years taining a common nuisance, to wit, a room, house, building, structure, and place where intoxicating liquors were then and there kept for sale, barter, delivery, and given away, in violation of the laws of the state of Indiana, and where persons were then and there permitted to resort for the purpose of drinking intoxicating liquors as a beverage, in violation of the laws of the state of Indiana." Each defendant entered a plea of guilty, on which the court made a finding that each was guilty as charged, and ought to be fined $300 and imprisoned 60 days, but before the affidavit was made, would be supported by evidence that it was being maintained at all or any times within the period allowed by the statute of limitations (section 1890, Burns' 1914; section 23, c. 169, p. 587, Acts 1905) for commencing such a prosecution. Zoller v. State, 189 Ind. 114, 118, 126 N. E. 1; Zimmerman v. State, 4 Ind. App. 583, 586, 31 N. E. 550; Gardner v. State, 161 Ind. 262, 267, 68 N. E. 163. No error was committed in overruling the motion in arrest of judgment. The judgment is affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |