Grupe v. State

Niblack, J. This was a prosecution for selling intoxicating liquor to a minor. The indictment charges, “ that one-Henry Grupe, * * on the 28th day of June, A. .D. 1878, at,” etc., “ did then and there unlawfully sell intoxicating liquor, to wit, one gill, to one Franklin Churchill, at and for the price of five cents, he, the said Franklin Churchill, being then and there a person under the age of twenty-one years.” The defendant entered a plea of guilty to the indictment, and a judgment of conviction followed. The defendant has appealed and assigned error in such a way as to raise the question of the sufficiency of the indictment to sustain the judgment. [328] It is urged that the indictment is fatally defective, because its averments do not exclude the inference that the amount of intoxicating liquor sold at the time alleged, may not, in the aggregate, have been as much as, or more than, a quart. In other words, that it is not made to appear that the gill charged to have been sold may not have been but a portion of a much larger amount of intoxicating liquor sold at. the time specified in the indictment. The precise question thus raised has been decided at the present term of this court,' in the case of Arbintrode v. The State, ante, p. 267; and, upon the authority of that case, the judgment in this case will have -to be reversed, the appellant’s objection to the sufficiency of the indictment being, as we think, .well taken. The judgment is reversed, and the cause remanded for further proceedings.