State v. Shoemaker

4 Ind. 100, 1853 Ind. LEXIS 21

• Court: Indiana Supreme Court
• Decided: May 26, 1853
• Status: Published

Opinion

Stuart, J.

Indictment against a licensed grocer for vending spirituous liquor to a minor, without the consent of his parent, &c.

Motion to quash in the Circuit Court sustained.

The indictment professes to meet the requisitions of s. 95, c. 53, of the R. S. 1843. It is objected that the language of that section is not followed. The statute reads, that if a licensed grocer,&c., “sell, &c.,to a minor, without the consent of his parent or guardian.” The indictment runs, “without the consent of his parent,” omitting the words, “or guardian.”

A. L. Robinson, for the state. J. Pitcher, for the defendant.

It is possible that one or both of the minor’s parents were dead—possible that he had a guardian. But the presumption in favor of the parent being alive and competent to discharge the duties which that position imposes, may be fairly indulged. It is not necessary that the indictment should negative every conceivable fact which might change the character of the offence. 7 Blackf. 468. In this case, as in that, the objection may possibly apply to the evidence, and avail the defendant on the trial. But there is sufficient on the face of the indictment to put the defendant to answer. The motion to quash should have been overruled.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.