Thompson v. State , 196 Ind. 229 ( 1925 )

On May 1, 1923, an affidavit was filed charging that on April 14, 1923, the defendant (appellant) unlawfully maintained and assisted in maintaining a 1, 2. certain place, room, house, building and structure located and known as No. 30 Lower Third street, in the city of Evansville, in Vanderburgh county, State of Indiana, where intoxicating liquors were then and there sold, bartered and given away, in violation of law, and where they were kept to be drunk as a beverage by divers persons to the affiant unknown, and where said intoxicating liquors were then and there kept for sale, barter and delivery, in violation of the laws of this state, and where persons were then and there permitted to resort for the purpose of drinking intoxicating liquors as a beverage, and that the said defendant did then and there unlawfully keep intoxicating liquors in and use the same in maintaining said place. Overruling a motion to quash this affidavit is assigned as error. But where either of two or more acts is declared by a statute to constitute the same offense, and is made punishable by the same penalty, an affidavit which, in the language of the statute, charges the doing of all of such acts, conjunctively is not bad for duplicity by reason of that fact. Lennard v.State (1921), 191 Ind. 371, 372, 132 N.E. 677.

Since § 20, Acts 1917 p. 15, (§ 8356t Burns' Supp. 1921) declares any place of either kind mentioned in the affidavit to be a common nuisance if any of the acts charged in said affidavit are done therein and makes it a criminal offense to maintain such a place, the affidavit is not open to the objection of duplicity or uncertainty in the matter of describing the character of the place alleged to have been maintained.

Forbidding any person to keep a place where intoxicating liquor is sold, manufactured, bartered or given away in violation of law is a matter properly connected with the subject of 3. "prohibiting the manufacture, sale, gift, advertisement * * * of intoxicating liquor," as set out in the title of said act of 1917. Alyea v. State (1925), post 364, 147 N.E. 144.

Evidence was introduced to the effect that officers with a search warrant commanding them to search "the following premises, building and all out buildings commonly known as number 30, 4. Lower Third street in the city of Evansville," in Vanderburgh county, State of Indiana, for stills and devices for the manufacture of intoxicating liquor, and for such liquor being therein sold, bartered and given away as a beverage; and being kept therein with intent so to sell, barter and give them away in violation of the laws of this state, went to No. 30 on said street, where appellant was operating a "soft drink parlor," and after having read the warrant to him, searched the room in which soft drinks were sold, and the dining room immediately behind it which opened into it, and the kitchen behind that, being the dining room and kitchen of his residence; that on the drain board in the kitchen sink they found an empty "pop bottle" which "had the odor of white mule," and that on the floor of a toilet closet that opened off from the other side of the kitchen was another "pop bottle" filled with "white mule whisky"; that the closet was dark, but when an officer entered with a flash light, the bottle of whisky was in plain sight; that there was an electric light in the closet which could be turned on, and the bottle was not covered up in any way; that there were thirty-two one-gallon jugs in the cellar, all empty and clean, and placed on a rack; that former owners had used the "soft drink parlor" as a saloon where intoxicating liquor was sold, for several years before the Prohibition Law was enacted; that the building was owned by appellant's wife, who had purchased it about two months before this search was made, and she and appellant had moved there about twenty-six days before; that appellant had been keeping the soft drink parlor about two weeks; that appellant and his wife and children lived in the building, and his wife conducted a rooming house there, the rooms upstairs being let as sleeping rooms; and over objections and exceptions by appellant, several witnesses testified that the reputation of No. 30, Lower Third street, as being a place where intoxicating liquors were sold and otherwise disposed of and as being a place where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage, was "bad."

The description of the place to be searched as set out in the warrant was "the following premises; building and all out buildings commonly known as number 30 Lower Third street 5, 6. in the city of Evansville." This was a sufficient description to authorize the search of the building at No. 30 Lower Third street, where the bottle was found. Boyd v.State (1924), 195 Ind. 213, 143 Ind. 355. But the mere possession by appellant of a half-pint of intoxicating liquor in his residence, at the time the search was made, on April 14, 1923, was not a criminal offense. Powell v. State (1923),193 Ind. 258, 139 N.E. 670; Smith v. State (1924), 194 Ind. 686, 144 N.E. 471; Beemer v. State (1925), ante 95,147 N.E. 276. And in the absence of any evidence that liquor was manufactured or was sold or otherwise disposed of, or drank on his premises, or that persons resorted there for the purpose of drinking it, evidence of the reputation of the place formerly kept by others as a liquor saloon, in which appellant recently had opened a soft drink parlor, and that a pop bottle filled with whisky was found in his residence behind the soft drink parlor, was not sufficient to prove him guilty of maintaining a nuisance. Shacklett v. State (1924), 195 Ind. 436, 145 N.E. 554;Brown v. State (1925), ante 77, 147 N.E. 136.

The possession of a half-pint of whisky in a closet of the kitchen of appellant's residence did not constitute prima facie evidence that he was engaged in the sale of intoxicating 7. liquor as a beverage, and the court erred in giving an instruction to the effect that it did.

For the errors indicated, the judgment is reversed, with directions to sustain appellant's motion for a new trial.