4 IND 240 - Divine v. State

How this case has been cited

Cited by 6 later decisions — most recently April 1909

6 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

Stuart, J.

¶1Indictment for vending spirits without license. Motion to quash overruled. Trial and judgment for the state.

¶2No authorities are cited on either side. We are therefore ignorant of the ground assumed on the motion to quash in the Court below.

¶3The objection we find to the indictment is, that there is no allegation of the price for which the liquor was sold. On motion to quash, this defect is fatal. Every fact essential to be proved, should be alleged. Here the pleader alleges a “ sale,” which is a conclusion from the facts, and leaves the important element of price, a fact essential to support the idea of sale, to be inferred. Perhaps, had all the facts been stated, the Court might have considered it a barter. It is inverting the order of pleading to allege conclusions, and leave the facts to inference.

¶4The motion to quash should have been sustained.

Per Curiam.

¶5The judgment is reversed. Cause remanded, &c.