State v. Downs

7 Ind. 237

• Court: Indiana Supreme Court
• Decided: December 12, 1855
• Status: Published

Opinion

Stuart, J.

This was a charge of vending spirits in violation of the act of 1853. Motion to quash sustained. The state appeals.

B. Reilly, for the state.

The affidavit is in this form: Tames Wilson swears that he buys his liquor by the gallon from Samuel Downs, but takes it away by the quart. He has bought from said Downs two gallons, which he took away at six different times, and there is still due witness one quart of the last, gallon. He pays said Downs forty cents per gallon for the spirituous liquor. This he has purchased from said Downs since the approval of the liquor law of March 4th,. 1853, and since the same came into force.

The information filed by the prosecutor is in better form. But the regularity of that can not aid the defect of the affidavit. The charge, as contained in the affidavit, does not allege a price. It alleges the usual course of trade between the parties: “he pays,” viz., is to pay, “40 cents a gallon.” But that is no allegation of price. The averment should be direct as to the price paid. The State v. Miles, 4 Ind. R. 577.—Divine v. The State, id. 240.—Brutton v. The State, id. 601.

The affidavit does not support the information. The motion to quash was therefore properly sustained.

Per Curiam.

The judgment is affirmed.