Stone v. State

Ray, J.

Indictment for selling intoxicating liquors, not having been licensed to engage in the traffic. Motion to quash overruled. The gi’ounds of the motion are, 1. That the indictment does not show that the grand jury presenting the indictment was composed of persons possessing the statutory qualifications. In the caption it is shown that the indictment is found by the grand jury of Jefferson county in the J efferson Circuit Court. This is sufficient. Weinzorpflin v. The State, 7 Blackf. 186 . The record before us recites that the grand jurors were sworn as required by law.

2. That the names of the members of the grand jury are not sufficiently set out. The record includes “A. J. Moore” *116 among the grand jurors, and recites that Andrew J. Moore was appointed foreman. There is nothing in' the objection.

There was a trial, and finding for the State. A motion for a new trial was overruled.. The indictment charges the appellant as “one Stone whose given name is to the jurors unknown.” Our statute requires the names of the parties to be stated, or the person to be described as one whose name is unknown to the grand jury, 2 G. & H. 400, sections 54 and 60. In Commonwealth v. Stoddard 9 Allen, 280 , it was held that where the name of the person injured was unknown to the grand jury, it may be so alleged in the indictment, but the proof must correspond with the allegation, and unless the traverse jury are satisfied that the name wag unknown to the grand jury, the defendant is not to be convicted. In this case there is no proof on the subject, and the jury could not form any conclusion as to the truth of the averment that the Christian name of the defendant was unknown to the grand jury. Eor this failure of proof the case must be reversed.

The indictment charges the sale of liquor, and that it was suffered by defendant to be drank in his house, or in his shed. The proof was,that defendant having sold the liquor in his store room, stated that it must not be drank there. The purchaser opened a door and stepped into a shed attached to the store room building, and found there a dry goods box, on which he placed the bottle and tumblers furnished .him by the .defendant. He left the tumblers- on the box in the shed and passed back through the store room into the street, when the liquor had been drank.- There was proof that the entire premises were owned by a third party, and that the defendant had rented the store room, but not this shed.

"We think, however, the jury could fairly infer from the evidence that the shed was in fact under the control of the defendant, and that he suffered the liquor to be drank therein, and that it did in fact form part of his house within the intent of the statute, 3. JR. and 3 L. Wilson, for appellant. 3. 3. Williamson, Attorney General, for the State.

The judgment is reversed, and the cause remanded.for a ■new trial.

The same cause for reversal exists in Stone v. The State, No. 1222, Same v. Same, No. 1223, and the same entry will ■be made.