Parker v. State

27 Ind. 393

• Court: Indiana Supreme Court
• Decided: November 15, 1866
• Status: Published

Opinion

Gregory, J.

The appellant was indicted in the court below for retailing intoxicating liquor, in a less quantity than a quart, without license. Plea, “ not guilty.” A trial by the court resulted in a finding of guilty; motion fora new trial overruled and judgment. The evidence is in the record, and shows that the defendant was licensed under the temperance law of March 5, 1859, (1 G. & H. 614,) to sell intoxicating liquor by a less quantity than a quart at a time. The sale, however, was made on Sunday, but before the law of December. 19,1865, (Acts Spec. Sess. 1865, pp. 197,198,) came into force.

At the tipie of the sale, there was no penalty for sales of liquor made on Sunday, by a person having a license to sell, and hence, though the license does not extend to sales made on that day, no prosecution will lie for such sales. Hingle v. The State, 24 Ind. 35.

G. M. Allen, for appellant. D. F. Williamson, Attorney General, for the State.

The penalty provided by the law of December, 19,1865, supra, does not apply to sales of liquor made before it came into force. The sale in question took place on the 5th of February, 1865. The law providing a penalty for such sales did not come into force until the 13th of April, 1866. The court below erred in overruling the appellant’s motion for a new trial.

The judgment is reversed, and. the cause remanded, with directions to grant a new trial, and for further proceedings.