The State v. Carpenter. THE STATE v. CARPENTER. CRIMINAL LAW AND PRACTICE.-An information for retailing without license will be bad, unless the affidavit upon which it is based also aver that the sale was made without license. It is sufficient for the information to aver that the defendant sold "intoxicating liquor," without specifying the kind of liquor sold. It is not necessary for it to aver that the liquor sold might have been used as a beverage. APPEAL from the Steuben Common Pleas. 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 20 219 149 235 Baillow v. The State. the statute itself has no relation to any other kind, without J. W. Cummings, District Attorney for the State. RINGLE V. THE STATE. APPEAL from the Noble Common Pleas. Per Curiam.-The judgment in this case is reversed, on the case of The State v. Carpenter, at this term, [supra.] The judgment is reversed. J. M. Flagg, for the appellant. Oscar B. Hord, Attorney General for the State. BAILLOW v. THE STATE. APPEAL from the Marion Common Pleas.. Per Curiam.-The judgment in this case is reversed on the authority of Justice v. The State, 17 Ind. 56; and the Clerk of the Supreme Court will notify the keeper of the State Prison to return the appellant to the custody of the Sheriff of Marion county, to await the further order of the proper Court. S. A. Colley, and Colerick & Jordan, for the appellant. Smith et al. v. Vanscoten et al. BROWN V. THE STATE. APPEAL from the Marion Circuit Court. Per Curiam.-This case falls within that of Justice v. The State, 17 Ind. 56. The judgment is reversed. McDonald & Roache, for the appellant. Oscar B. Hord, Attorney General, for the State. DOWNEY V. THE STATE. APPEAL from the Steuben Circuit Court. Per Curiam.-The judgment in this case is affirmed with costs, on the case of The State v. Carpenter, at this term, [supra.] A. Ellison, for the appellant. Oscar B. Hord, Attorney General, for the State. SMITH et al. v. VANSCOTEN et al. A, having a judgment against B, and B being insolvent, but the owner of an equitable interest in some land, instituted an action to subject that interest to his judgment. The Court, under the issues on the trial, found that B owned personal property worth 97 dollars and 1 cent, and that he was entitled to 202 dollars and 99 cents, out of the value of his equitable interest in the land, to make the Smith et al. v. Vanscoten et al. 300 dollars, to which he was entitled as exempt from execution, and that he then owed on the land 100 dollars to the grantor of it to him, which was a lien, and ordered the land to be sold, and the last named sum to be first paid, and then the 202 dollars and 99 cents, to B, out of the proceeds of the sale, and the residue to be applied on the plaintiff's judgment. The land was sold, and bought by the plaintiffs. They tendered the 100 dollars, but did not tender to B the 202 dollars and 99 cents, and in this condition of the matters the Court below ordered that the equitable estate should be conveyed in fee to the purchasers aforesaid. Held, that, under the circumstances, this was error. APPEAL from the Steuben Circuit Court. Per Curiam.-Suit for specific performance. Judgment for the plaintiffs. Appeal by the defendants. The facts of the case are these: In 1859 Oliver Smith sold to Willis Carpenter the land in question in this suit for 150 dollars. The sale was by parol, but Carpenter paid 75 dollars of the purchase-money and took possession. The land lies in Steuben county, Indiana. In March, 1860, Vanscoten and Thompson recovered a judgment against Carpenter for about 175 dollars. Execution was issued and returned no property found, whereupon proceedings were instituted to subject the equitable interest of Carpenter in the land so purchased to sale. The Court found that Carpenter had personal property of the value of 97 dollars and 1 cent, that he was entitled to 202 dollars and 99 cents of the value of his interest in the land to make up his 300 dollars claimed as exempt from execution, and adjudged that his interest in the land should be sold, subject to the claim of Smith for purchase-money unpaid, then about 100 dollars, and 202 dollars and 99 cents exempt from execution upon the claim of Carpenter. The sale was made, Vanscoten and Thompson being the purchasers, subject, &c. After the sale they tendered to Smith the amount due to him, but did not Watson et al. v. Mahan et al. tender to Carpenter the amount due him as exempt from execution. The Court below ordered Smith to make a deed. This was error. The judgment is reversed, with costs. Cause remanded. Blake & Chapin, for the appellees. WATSON et al. v. Mahan et al. SPECIFIC PERFORMANCE.-A, an aged bachelor, in feeble health, pro- 3. That, under the circumstances, the consideration for the property 4. That, in the action for specific performance, it was not competent for the defendants to offer any evidence as to the value of the annual rental of the property, or of the services rendered A by B and his wife. 5. That A's executor, who was also one of his devisees, was not a necessary party to the action in his character of executor. 20 223 128 479 |