Large v. State

DISSENTING OPINION. The opinion of the court, in deciding that the affidavit is not sufficient to withstand a motion to quash, holds that it "isdefective in not defining the offense more particularly so as tomake it appear upon what acts of the defendant, alleged to becriminal, the affidavit is founded."

Section 20, ch. 4, Acts 1917, under which this prosecution was brought, declared to be a common nuisance, the maintenance ofwhich makes any person guilty of a misdemeanor, etc., the following:

(1) Any room, house, building, boat, structure or place of any kind where intoxicating liquor is sold, manufactured, bartered or given away in violation of the law.

(2) Any room, house, building, boat, structure or place of any kind where persons are permitted to resort for the purpose of drinking intoxicating liquor as a beverage.

(3) Any place, building or club where such liquor is kept to be drunk as a beverage by the members thereof or other persons.

(4) Any place where such liquor is kept for sale, barter or delivery in violation of the laws of this state.

The affidavit charges that appellant "did . . . unlawfullykeep, maintain . . . a common nuisance," and sets out in the exact language of the statute the matter contained in clauses (4) and (2) indicated above.

At the date of this arrest and at the time this case was tried, the case of Smith v. State (1924), 194 Ind. 686, 144 N.E. 671, holding that under § 1, ch. 23, Acts 1923 it was not unlawful to keep intoxicating liquors with intent to sell the same, had not been decided. Granting that, when Smith v.State, supra, was decided, its effect on this case was to eliminate clause (4) above as one of the nuisances defined by the foregoing statute, the offense charged by the remaining portion of the affidavit herein was that appellant: "did . . .unlawfully keep, maintain and assist in keeping and maintaining acommon nuisance to wit.: a room, house, building and place . . .where persons were . . . permitted to resort for the purpose ofdrinking intoxicating liquors as a beverage." This is the exact language of the statute and it is difficult to conceive just how the offense could be defined "more particularly so as to make it appear upon what acts of the defendant, alleged to be criminal, the affidavit is founded." That the court fails to keep in mind that the act prohibited by the statute and charged by this affidavit is maintaining a nuisance, and is confused thereby is indicated in that paragraph of the opinion which reads in part as follows: "It does not appear from such affidavit what particular act of appellant in permitting the drinking of intoxicating liquor was an offense or why it was unlawful. The affidavit does not allege facts showing that such drinking was unlawful."

The words "in violation of the laws of the State of Indiana," following the words in the affidavit charging the maintenance of a nuisance, clearly relate to appellant's act in maintaining a nuisance and not to the acts of those permitted "to resort for the purpose of drinking." The statute declares that a nuisance has been unlawfully maintained when a place is kept where persons are permitted to resort for the purpose of drinking, etc., regardless of whether the acts of resorting or drinking are unlawful, and while it seems clear that the phrase "in violation of the laws of the State of Indiana" is in apposition to the other formal phrases which follow it, "contrary to the form of the statute," etc., such phrase, if it did refer to the acts of resorting and drinking, would be merely surplusage.

The case of Sopher v. State (1907), 169 Ind. 177, 81 N.E. 913, cited in the main opinion and by appellant to the point that "a public nuisance always arises from unlawful acts" and that "the legislature cannot constitute a nuisance from the commission of an act which is lawful" held that a licensed saloon was notper se a nuisance under an act which provided that "every person who shall erect or continue and maintain any public nuisance to the injury of any part of the citizens of this state shall on conviction be fined not exceeding $100.00," § 534, ch. 169, Acts 1905. It does not hold that the legislature in defining a new nuisance and creating a penalty for maintaining the same is limited to acts which theretofore have been unlawful.

In Torphy v. State (1918), 187 Ind. 73, 118 N.E. 355, cited in the prevailing opinion, it was held that an allegation in an indictment of a prior conviction for a similar offense should on motion be stricken out where the statute makes no provision concerning a second conviction. There "the fact of a prior conviction was not, under the issues . . . a circumstance which could properly be brought to the attention of the jury in any manner as a part of the state's case." Ibid. p. 75. But, in the case at bar, the fact, which was shown in evidence, that appellant kept intoxicating liquors for sale on his house boat was pertinent to the issues as to whether persons resorted thereto for the purpose of drinking intoxicating liquors as a beverage.

The evidence showed that appellant operated the power boat Rainbow and the barge Defiance for excursions on the Wabash River. The barge had a large dancing floor and the boat was a house boat of four rooms, surrounded by a platform or deck. At the time of the search, a three-gallon bucket was thrown from a window into the river. The bucket was taken from the river by one of the officers and found to contain water and "white-mule" whisky, the solution testing twenty-eight and three tenths per cent. alcohol by volume. There was testimony that home-brew beer was sold by appellant and his wife while the boat was on the river with a crowd on a pleasure trip and that everyone on the boat, fifty to seventy-five passengers, was intoxicated.

It is stated in the main opinion that "the State was entitled on the trial of the case to read the affidavit to the jury in stating its case." The record shows that the case was tried by the court without the intervention of a jury, but if there had been a jury trial, the defendant would have been entitled to an instruction informing the jury that the affidavit did not constitute evidence of any fact in the case.

I believe that the affidavit was sufficient to withstand the demurrer, that the judgment based thereon was sufficient to withstand the motion in arrest, and that it should be affirmed.

Gemmill, J., concurs in the conclusion of the dissenting opinion.