Divine v. State
This text of 4 Ind. 240 (Divine v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Indictment for vending spirits without license. Motion to quash overruled. Trial and judgment for the state.
No authorities are cited on either side. We are therefore ignorant of the ground assumed on the motion to quash in the Court below.
The objection we find to the indictment is, that there is no allegation of the price for which the liquor was sold. On motion to quash, this defect is fatal. Every fact essential to be proved, should be alleged. Here the pleader alleges a “ sale,” which is a conclusion from the facts, and leaves the important element of price, a fact essential to support the idea of sale, to be inferred. Perhaps, had all the facts been stated, the Court might have considered it a barter. It is inverting the order of pleading to allege conclusions, and leave the facts to inference.
The motion to quash should have been sustained.
The judgment is reversed. Cause remanded, &c.
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Cite This Page — Counsel Stack
4 Ind. 240, 1853 Ind. LEXIS 82, Counsel Stack Legal Research, https://law.counselstack.com/opinion/divine-v-state-ind-1853.