Opinion
No. 13,889.
Filed November 14, 1929. Petition for rehearing dismissed December 4, 1929.
1. INTOXICATING LIQUORS — Maintenance of Liquor Nuisance — Indictment Charging Sale, Manufacturing, Barter and Gift — Evidence of Sale Sufficient. — Where defendant was charged with maintaining a liquor nuisance where intoxicating liquors were sold, manufactured, bartered and given away in violation of law and where persons were permitted to resort for the purpose of drinking intoxicating liquor as a beverage, evidence showing that intoxicating liquor was sold at such place was sufficient to sustain a conviction, though the evidence did not prove the commission of the other acts charged. p. 411.
2. INDICTMENT AND AFFIDAVIT — Statute Defining Crime — Making Any One of Several Acts a Crime — Manner of Pleading — Duplicity. — Where a statute defining a crime makes the doing of any one of a number of things a criminal offense, an indictment may allege, in a single count, that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction "and" where the statute makes use of the word "or," and it will not be bad for duplicity. p. 411.
3. INTOXICATING LIQUORS — Maintaining Liquor Nuisance — Instruction Properly Refused. — In a prosecution for maintaining a liquor nuisance by selling, manufacturing, bartering and giving away intoxicating liquor and by permitting persons to resort thereto for the purpose of drinking intoxicating liquors as a beverage, an instruction that there could be no conviction without proof that persons resorted to defendant's place for the purpose of drinking intoxicating liquor as a beverage was properly refused. p. 412.
4. CRIMINAL LAW — Appeal — Review of Instructions — All Instructions Given Must be Set Out in Appellant's Brief. — Under cl. 5 of Rule 22, of the Supreme and Appellate Courts, as amended January 1, 1924, an instruction will not be considered on appeal unless all the instructions given by the court are set out in appellant's brief. p. 412.
5. CRIMINAL LAW — Appeal — Instructions — Cannot be Brought into Record by Original Bill of Exceptions. — Instructions cannot be brought into the record on appeal by an original bill of exceptions, as it is only the original bill of exceptions containing the evidence given at the trial that can be certified to an appellate tribunal without copying. p. 412.
From Steuben Circuit Court; Charles A. Yotter, Special Judge.
George Potter was convicted of maintaining a liquor nuisance, and he appealed. Affirmed. By the court in banc.
Hubbard Hubbard and John H. Fleming, for appellant.
James M. Ogden, Attorney-General, and E. Burke Walker, Deputy Attorney-General, for the State.
Appellant was, by indictment, charged with the offense of maintaining a nuisance, a place where intoxicating liquors were sold, manufactured, bartered and given away in violation of law, and where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage.
A trial by jury resulted in a conviction. Appellant's motion for a new trial, challenging the sufficiency of the evidence to sustain the verdict and the refusal of the court to give appellant's requested instruction 10, was overruled.
The uncontradicted evidence conclusively shows that appellant did maintain a place where intoxicating liquor was unlawfully sold as charged in the indictment. Appellant contends that 1. there is no evidence that persons were permitted to resort to the place kept by him for the purpose of drinking intoxicating liquor, and that, although the evidence does show that he kept a place where such liquors were unlawfully sold, the verdict is not sustained by sufficient evidence. There is no merit in this contention. There is no evidence that appellant manufactured intoxicating liquors or that he bartered or gave any away in violation of law. According to appellant's contention, there could have been no conviction under this indictment if every allegation therein had been proved, except the charge of having manufactured the liquor.
A statute often makes punishable the doing of one thing or another, sometimes thus specifying a considerable number of things. An indictment under such a statute may allege, in a 2. single count, that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction "and" where the statute makes use of the word "or" and it will not be double, and the evidence will be sufficient to sustain a conviction if any one of the forbidden acts is established at the trial. Howard v. State (1921), 191 Ind. 232, 131 N.E. 403.
Instruction 10, requested by appellant and which was refused, would have told the jury there could have been no conviction in the absence of proof that persons resorted to appellant's 3. place for the purpose of drinking intoxicating liquor as a beverage. The court correctly refused to give this instruction.
We also call attention to the fact that none of the instructions which the court gave the jury is set out in appellant's brief, as required by clause 5, Rule 22 of 4, 5. this court, as amended January 1, 1924. Appellant has also attempted to bring the refused instruction into the record in this court by having the clerk certify to this court the original special bill of exceptions whereby such instruction was made a part of the record in the trial court. The statute does not authorize such proceeding. It is only original bills of exceptions containing the evidence given at the trial that can be certified to this court without copying. Mitchell, Exr., v. Beissenherz (1922), 192 Ind. 587, 135 N.E. 885; Seibert v. State (1929), 89 Ind. App. 604, 166 N.E. 256, 167 N.E. 542.
Judgment affirmed.