State v. Corll

Worden, J. — Affidavit and information against the appellee for retailing without a license. On motion of tho appellee, the affidavit and information were quashed, and the State excepted. This ruling of the court is assigned for error. The affidavit, made by Elam Robbins, stated that oon or about the 1st day of January, A. D. 1880, at the county of Wabash and State of Indiana, one George W. Corll unlaw [536] fully sold to said Robbins one gill of intoxicating liquor, to be drank, and suffered to be drank in the house of said Corll, where the same was so sold, to wit, one gill of intoxicating* liquor, called whiskey, at and for the price of ten cents in money, he, the said Corll, not being then and there licensed to sell intoxicating* liquor to be drunk or suffered to be drunk in said house, contrary,” etc. The information followed the affidavit. The objection urged to the affidavit and information is that they do not allege that the quantity of liquor sold was less than a quart. This objection is not well taken. The 12th section of the act of March 17th, 1875, 1 R. S. 1876, p. 869, provides that “Any person not being licensed according to the provisions of this act, 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 avIio shall sell or barter any spirituous, vinous or malt liquors to be drank or suffered to be drank in his house, out-house, yard, garden, or the appurtenances thereto belonging, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall bo fined,” etc. This section creates two distinct offences : The first branch makes it an offence to sell or barter, without a license, spirituous, etc., liquors, in a less quantity than a quart at a time, without reference to the place where they are to be drunk. In a prosecution under the first branch of the section, that is, where it is not aveiwod that the liquors were to bo drunk, or were suffered to be drunk, in the house, etc., the indictment or affidavit and information must show that the quantity sold was less than a quart. See Arbintrode v. The State, 67 Ind. 267, and subsequent cases following it. But, under the second branch of the section, the quantity sold is entirely immaterial. The object of the second branch was to prohibit the barter or sale of such liquors in any quantity, groat or small, to be drunk, or suffered to be drunk, in the [537] bouse, etc., without a license. Schlicht v. The State, 56 Ind. 173; Plunkett v. The State, 69 Ind. 68. The averments in-the affidavit and information brought the case within the second branch of the section of the statute above quoted; and there was no need, therefore, that ' they should show that the quantity sold was less than a quart. If there is anything in the case of The State v. Zeitler, 63 Ind. 441, which is in conflict with the foregoing view, it must be to that extent overruled. We arc of opinion that the court below erred in quashing 'the affidavit and information. The judgment below quashing the affidavit and information is reversed, with costs, and the cause remanded for fur- ■ ther proceedings.