State v. Oleksy

Rice, J., delivering the opinion of thé court: The grand jury of this county, at the present term, indicted Antonio Oleksy and Joseph Helenski for the unlawful sale of intoxicating liquor, the indictment being as follows: “That Antonio Oleksy and Joseph Helenski, both late of Wilmington Hundred, in the county aforesaid, on the third day of March, in the year of our Lord one thousand nine hundred and twelve, with force and arms, at Wilmington Hundred in the county aforesaid, did then and there unlawfully sell intoxicating liquor, to wit, lager beer, to one Felix Lewandowski, against the form of the act of the General Assembly, in such case made and provided, and against, the peace and dignity of the state.” Counsel for the defendants moved to quash the indictment on the ground that ‘ ‘ it does not plainly and fully inform the defendants of the nature and cause of the accusation against them in accordance with the provisions of Section 7, Article 1, of the Constitition of the State of Delaware.” That the defendants are plainly and fully informed in the indictment of the offense with which they are charged is claimed by the state, and it is urged that under the provision of Revised Code, p. 419, c. 53, § 12, it is not necessary for the indictment to set forth that the defendants had no license for the sale of intoxicating liquors. Section 12, Chapter 384, Volume 16, Laws of Delaware. Revised Code, 419, provides: “In prosecutions against any vendor of intoxicating liquors, it shall not be necessary to aver or allege in any form that the defendants had no license; but the fact of license shall be matter of defense under the plea of not guilty.” Against this claim of the state the defendants’ counsel contends that section 12 is unconstitutional in that it violates the provisions of Section 7, Article 1, of the Constitution. The questions for our consideration in, this case have been passed on by this court in three reported cases. In the case of State v. Solio, 4 Penn. 138, 54 Atl. 684, the court on motion quashed the indictment on the ground that it did not set out with sufficient certainty the nature and character of the offense charged. In the Solio case the attention of the court was [357] not called to section 12, and its provisions, but in the next case considered, which is the case of State v. Polk, 6 Penn. 456, 69 Atl. 1006, the state made the same contention in respect to section 12 as it makes in the present case, and at that time it was urged on behalf of the defendant that the said section of the Code was not constitutional. The court held section 12 to be constitutional and refused to quash the indictment. This decision was followed by this court in the case of State v. Fagan, 1 Boyce 45, 74 Atl. 692, when it refused to quash the indictment, the court saying at the time that it was governed by the decision of the court in the Polk case. Thus while this court in the early case held the indictment to be insufficient, yet in the two later cases, and the only cases in' which the constitutionality of section 12 was raised, the court held the indictments in the respective cases to be good. This court is of the opinion that it should adhere to the decisions of the same court in the later cases. We therefore overrule the motion and refuse to quash the indictment.