State v. Carpenter

20 Ind. 219

Opinion

Perkins, J.

Information against Carpenter for retailing without license.

The information was quashed. The State appeals.

The affidavit upon which the information was based did not aver that the intoxicating liquor was sold without license, but the information did. The defect in the affidavit was one of substance that the information could not supply. It is necessary that a legal offence shall be charged in the affidavit; otherwise a party would be criminally prosecuted without a charge upon oath. The State v. Downy, 7 Ind. 237; The State v. Wise, id., 645. To constitute retailing a crime, it must be done without license, and so the affidavit and information must charge it to have been done. And so must be the proof on the trial; and. the fact that the party had not a license in such cases is proved by his neglect to produce one on the trial, because the natural place for it, if he has one, is in his own possession. See The State v. Watson, 5 Blackf. 155; Lewis’ U. S. Cr. Law, 524; Howe v. The State, 10 Ind. 423. .

The information simply charged, in describing the liquor, that it was intoxicating. The point made on this averment is decided in Simpson v. The State, 17 Ind. 444. It is there held sufficient. It is said the information should have averred that the liquor might have been used as a beverage; but the statute itself has no relation to any other kind, without the definition clause. That amounts to nothing. Retailing statutes never related to the compounds sold by druggists. See 5 Blackf. 118; 15 Ind. 449; 5 Ind. 516.

J. W. Cummings, District Attorney for the State. J. A. Woodhull, for the appellee.

Per Curiam.

The judgment is affirmed.