Huber v. State

25 Ind. 175

• Court: Indiana Supreme Court
• Decided: November 15, 1865
• Status: Published

Opinion

Elliott, J.

Huber, the appellant, was prosecuted and convicted in the Hendricks Common Pleas for keeping a nuisance.

The only question urged for the reversal of the judgment is as to the sufficiency of the information.

The information charged that said Huber, “on the 1st day of May, 1864, and on divers other days subsequent and prior to said day, was the owner and keeper of a business house in the town of Danville, Hendricks county, Indiana, wherein he kept for sale, and actually sold, intoxicating liquors in quantities to suit purchasers, to-wit: lager beer by the pint, half-pint, glass, &c. * * * * * And that said Jacob Huber did then and there keep said' house in a disorderly manner, to the annoyance generally of the citizens living in the vicinity of said house.” It also specifies the character of the disorder suffered in said house, viz, “suffering divers persons to congregate and remain in and about the same, drinking, swearing, stamping, hallooing and making divers disturbances and tumults.”

The appellant contends that the information is founded on the 10th section of the act defining misdemeanors. 2 G. &. II., 461, While the Attorney General insists that it is based upon the. 13th section of the temperance law of 1859. 1 G. &IL, 617.

The information would be good under either statute, but the former, so far- as it conflicts with the latter, is repealed. They differ as to the penalty to be inflicted.

The 13th section of the temperance law, supra, enacts, that “Every place, house, room, arbor or shed, wherein intoxicating liquors, are sold, bartered or given away, or suffered to be drank, if kept in a disorderly manner, shall be deemed a common nuisance, and tbe keeper thereof, upon conviction, shall be fined in any sum not less than §50 nor more than §200, to which may be added by the court or jury trying the cause, imprisonment in the county jail for any determined period of time, not exceeding three months.” The objection is not well taken, and the judgment must therefore be affirmed,

M. M. Ray and J. W. Gordon, for appellant. D. JE. Williamson, Attorney General for the State.

The judgment is affirmed, with costs.