Hammond v. State

48 Ind. 393

• Court: Indiana Supreme Court
• Decided: November 15, 1874
• Status: Published

Opinion

Downey, J.

This was a prosecution, on an affidavit and information, against the appellant, charging that he did unlawfully sell, barter, and give to a person named “ one gill of intoxicating liquor,” the person whose name is given being then and there in the habit of getting intoxicated.

The first point made is, that the court erred in overruling a motion made by the defendant to quash the affidavit and information. The ground of objection is, that the affidavit and information do not allege that the liquor was intoxicating.

Counsel say: “It is true that the language of the affidavit is e one gill of intoxicating liquor/ but this, we submit, is scarcely equal to saying that the liquor was intoxicating,” etc. The difference is between saying that “ the liquor was intoxicating,” and saying that it was “ intoxicating liquor.” To us the words convey the same idea. There is nothing in the objection.

The next question is upon the refusal of the court to grant a new trial, which was asked on the ground of newly-discovered testimony. With some hesitation, we have come to the conclusion that the new trial should have been granted.

The judgment is reversed, and the cause remanded, with instructions to grant a new trial.