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5, 1915, the prosecuting attorney by leave ! Appeal from Circuit Court, Jay County ; of the court filed an affidavit, containing James J. Moran, Judge. what was termed an amended charge against Action by Grace Griffis against the United appellee of embezzling the same sum of mon- States Casualty Company. Judgment for ey. To this latter charge appellee also en- plaintiff, and defendant appeals. Affirmed. tered a plea of not guilty, and upon it he was

Elam, Fesler, Elam & Young, of Indianplaced on trial and acquitted. The prosecut- apolis, Focht & Hutchens, of Winchester, and ing attorney during the progress of the trial La Follette & McGriff, of Portland, for aptook many exceptions to rulings on evidence pellant. George H. Ward and Macy, Nichols, and to instructions given by the court. Such Goodrich & Bales, all of Winchester, for aprulings and the giving of the instructions ex

pellee. cepted to have been brought to this court as reserved questions of law under section 2162

MORRIS, J. Suit by appellee against apand section 2211, cl. 3, Burns 1914, and the pellant on an accident policy. The first paradecision of them by us is invoked by the graph of complaint alleges that appellant instate.

sured appellee's husband, James R. Griffis, It is impossible to discover from the aver- "against loss resulting directly and independments of the affidavit on which appellee was ently of any and all other causes from boditried, which affidavit is in one count, whether |ly injury effected solely through external, he was charged with embezzlement as

a violent and accidental means"; that said fiduciary (Burns 1914, 8 2293), or as an agent James R. Griffis lost his life by such means (section 2285, Burns 1914). Because of this because he ate mushrooms tainted with ptouncertainty and the peculiar state of facts maine poison; that the death was not condisclosed by the evidence, we do not feel tributed to by disease, either directly or incalled upon to pass in detail upon the 31 directly. A second paragraph of complaint questions reserved. The decision of none of differed from the first, in that it alleged that them, for the reasons given, would serve the the death resulted from the accidental eatpurpose for which appeals by the state on ing or drinking of a poisonous substance the reserved questions of law are provided. nature of which was unknown. A demurrer That purpose is to obtain opinions of this to each paragraph was overruled. There court on questions of law which shall declare was a trial with verdict and judgment for a rule for the guidance of and which shall be appellee for $6,645. Appellant here chalbinding on the inferior courts of the state. lenges the sufficiency of each paragraph of It is to settle questions likely again to arise complaint, and also the suficiency of the eviin the trial of criminal prosecutions. No

dence. such questions are presented in this appeal. The decision of those presented would, in from liability for injury "resulting from or

The policy expressly exempted appellant the main, confuse rather than clarify the

contributed to, directly or indirectly, wholly law.

or partially, by disease.” Several of the assignments of error seek

The evidence for appellee shows that forto raise the question whether it is error of law on the part of the trial court in its in- merly decedent Griffis was a lawyer of Ranstructions to the jury unduly to emphasize dolph county; that immediately before his and repeat that the evidence must show the death he and his wife resided at Cleveland, guilt of the defendant beyond a reasonable Ohio, about four miles from the business cendoubt before a verdict of conviction may be ter of the city; that on October 25, 1913, at returned. The practice of repeating in in- left their place of residence and went to a

about 7 o'clock p. m., Mr. and Mrs. Griffis structions vital questions to one side or the other is not commendable, and is to be dis- restaurant in the business center of the city couraged, but we find no serious objection in for the evening meal, where Mr. Griffis ate this particular to the instructions in this some mushrooms at about 8 o'clock p. m.;

that thereupon they went home, arriving case.

there at about 9 p. m.; that Mr. Griffis, about The appeal is not sustained.

15 minutes thereafter, went to his bedroom

to prepare for retiring, while Mrs. Griffis (186 Ind. 126)

went to the bathroom to take a bath, and UNITED STATES CASUALTY CO. V. GRIF- where she was occupied for about 30 minFIS. (No. 22851.) *

utes; that she then heard water running (Supreme Court of Indiana. Nov. 21, 1916.) went to turn off the water; that on arriv

at a sink near Mr. Griffis' bedroom and INSURANCE 455 — ACCIDENT INSURANCE

ing at the sink she discovered a quantity PTOMAINE POISONING - ACCIDENTAL MEANS."

of mushrooms that had been vomited by Death from ptomaine poisoning from eating her husband; that she then went to Mr. mushrooms, supposed to be edible, is from "ac- Griffis' bedroom, and found him lying across cidental means,' and not from disease, within

his bed, dressed in his nightclothes, moanan accident policy.

(Ed. Note.-For other cases, see Insurance, ing and unconscious; that she immediateCent. Dig. $$ 1166–1169; Dec. Dig. 455.) lly telephoned Dr. Placak, who arrived in

for other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Rehearing denied.

15 minutes and administered medical treat-, R. A. (N. S.) 422, 112 Am. St. Rep. 232, 6 ment without effect; that at that time Mr. Ann. Cas. 551. Griffis' pulse was low and rapid, his finger Appellant vigorously assails the New York nails and lips were blue, and his face was case, and those of other jurisdictions followcold and clammy and of a greenish white ing it, and earnestly contends that, while the color; that a half hour later, Dr. Leichty, death may have been accidental and violent, a physician skilled in handling ptomaine poi- it was not effected by accidental and violent son cases, was called into consultation; that means; that Mr. Griffis voluntarily ate the after the latter's arrival the patient vomited mushrooms, and the mere fact that an unup some more mushrooms, was frothing at expected result followed in no wise makes the mouth, and was unable to swallow any- the means accidental within the meaning of thing; that the two physicians resorted, the language of the policy. In support of without success, to various remedial meas- its theory, appellant, among numerous other ures, but death ensued shortly after mid-cases, cites that of Smith v. Travelers' Ins. night. Mr. Griffis never regained conscious Co. (1914) 219 Mass. 147, 106 N. E. 607, L. ness after his wife discovered him lying R. A. 1915B, 872, where liability was denied across his bed. She testified that at and be in a case where the deceased was afflicted fore the time he partook of the mushrooms with nasal catarrh, and was in the habit of Mr. Griffis was in perfect health. Dr. Leichty using a nasal douche. On one occasion, while testified that, in his opinion, ptomaine is an using the instrument, he "snuffed" harder organic poison substance, produced by the ac-than usual, with the result that streptococcus tion of bacteria on some nitrogenous mat-germs were carried from the nostrils through ter, and that Mr. Griffis' death was caused the Eustachian tube in the middle ear and solely by virulent ptomaine poison which thence penetrated the brain and resulted in was contained in the mushrooms eaten. Med his death from spinal meningitis. The Suical experts called by appellant were of the preme Judicial Court of Massachusetts held opinion that organic diseases contributed to that there was nothing accidental in the indecedent's death, but the jury manifestly halation; that, while the deceased "snuffed" accepted the opinions of Dr. Leichty and oth- harder than he had formerly done, he iner medical experts called by appellee.

tended so to do, and the external act was It is not contended by appellant that Mr. wbat he purposed; that, though the result Griffis was guilty of any negligence in partak- was unexpected, the means employed was ing of the mushrooms, or that in such act he not, and recovery was proper only when the intended to eat food containing a poisonous means enıployed was accidental. The opinion substance. Paul v. Travelers' Ins. Co., 112 deals with Paul v. Travelers' Ins. Co., supra, N. Y. 472, 20 N. E. 347, 3 L. R. A. 443, 8 Am. and some other cases, in the following lanSt. Rep. 758, was decided by the New York guage: Court of Appeals 27 years ago, and has been

"In Healey v. Mutual Acci. Ass'n, 133 Ill. approved quite generally by other courts. 556, 25 N. E. 52, 9 L, R. A. 371, 23 Am. St. The principle there declared was similar to Rep. 637, the deceased did not know that what the one here involved. In that case one Paul he drank was a poison; he took and drank it

accidentally. In Jenkins v. Hawkeye Commerwas a guest at a hotel of New York City. He cial Men's Ass'n, 147 Iowa, 113, 124 N. W. 199, retired for the night and was discovered dead 30 L. R. A. (N. S.) 1181, the swallowing of in his bed on the following morning. When the fish bone that caused the death of the inthe body was found, the air in his sleeping ualty Co. v. Hudgins, 97 Tex. 124, 76 S. W.

sured was a mere accident. In Maryland Caschamber was strongly impregnated with il- 745, 64 L. R. A. 349, 104 Am. St. Rep. 857, luminating gas. In an action on an accident 1 Ann. Cas. 252, the oysters which caused the policy indemnifying the beneficiary against of their unsound condition. In Paul v. Trav

death were eaten by the deceased in ignorance loss by bodily injuries “through external vio- elers' Ins. Co., 112 N. Y. 472, 20 N. E. 347, lent and accidental means," the trial court 3 L. R. A. 443, 8 Am. St. Rep. 758, the deheld the guest's death accidental and award-ceased had no intention of inhaling' the gas ed judgment to the beneficiary. The judg- sions is inconsistent with the view which we

which caused his death. None of these deciment was afirmed by the Court of Appeals, take of the case at bar." in an opinion holding that:

This case is also cited by counsel for ar“An 'accident is the happening of an event without the aid and the design of the person pellee, who claim that it supports their conand which is unforeseen.

As to the tention that the injury here in question was point raised by the appellant that the death caused by accidental means, and this claim was not caused by external and violent means, appears to us as well founded. Under the within the meaning of the policy, we think it a sufficient answer that the gas in the atmos- facts pleaded and proven, Mr. Griffis intendphere, as an external cause, was a violent ed only to eat wholesome mushrooms; but, agency, in the sense that it worked upon the in: unexpectedly to him, the mushrooms eaten testate so as to cause his death. That a death is the result of accident, or is unnatural, im- contained a foreign substance that was a ports an external and violent agency as the virulent poison and constituted an agency cause."

of such violent character as to subvert the The case was cited with approval by this normal functions of his vital organs and court in Ætna Life Ins. Co. v. Fitzgerald produce death possibly quicker than would

been a corrosive acid poison. We quite agrees ones. What we have said in reference to the with appellant's counsel when they say that complaint and evidence disposes of appelthe means must be accidental, and that a lant's principal contentions relative to inmere accidental result would not suffice un- structions given and refused. In other reder the language of this policy; but we are spects we are satisfied that there was no of the opinion that the unintentional taking reversible error committed. of the poisonous substance contained in what Judgment affirmed. deceased supposed to be edible mushrooms constituted an accidental means which caused

(185 Ind. 677) the death. In support of our conclusion we

ROSE V. CITY OF JEFFERSONVILLE. cite the following: Peele v. Prov. Fund Soc.,

(No. 22889.) 147 Ind. 543, 44 N. E. 661, 46 N. E. 990; | (Supreme Court of Indiana. Nov. 21, 1916.) Johnson V. Fidelity & Casualty Co. (1915)

SCOPE 184 Mich. 406, 151 N. W. 593, L. R. A. 19164, 1. APPEAL AND ERROR Cw757(3)

SUFFICIENCY OF BRIEFS. 475, and note page 481 (a ptomaine poison Under Court Rule 22, cl. 5 (55 N. E. v), case); Bohaker v. Travelers' Ins. Co. (1913) stating the requisites of the record on appeal, 215 Mass. 32, 102 N. E. 342, 46 L R. A. (N. the brief must contain the substance of the tesS.) 543; Clark v. Iowa State Traveling Men's timony; and is insufficient if it contains only

part of the testimony of part of the witnesses, Ass'n, 156 Iowa, 201, 135 N. W. 1114, 42 L. coupled with the writer's conclusions. R. A. (N. S.) 631; Railway Mail Ass'n v. (Ed. Note.-For other cases, see Appeal and Dent, 213 Fed. 981, 130 C. C. A. 387, L. R. A. Error, Cent. Dig. § 3092; Dec. Dig.

757(3).) 1915A, 314; Hill v. Hartford Accident Ips. Co. (1880) 22 Hun (N. Y.) 187; Kennedy v. 2. APPEAL AND ERBOR Cw1011(1)—SCOPE.

Where the record shows a conflict in the Ætna Life Ins. Co. (1903) 31 Tex. Civ. App. evidence, and the appeal is for insufficiency of 509, 72 S. W 602; Pollock v. U. S. Mut. Ac evidence as indicated by the motion for new cident Ass'n (1883) 102 Pa. 230, 48 Am. Rep. trial, the judgment must be sustained if there

is any evidence to support it. 204; Metropolitan Accident Ass'n v. Froiland

(Ed. Note.-For other cases, see Appeal and (1896) 161 Ill. 30, 43 N. E. 766, 52 Am. St. Error, Cent. Dig. $$ 3983-3988; Dec. Dig. Om Rep. 359; Healey v. Mut. Accident Ass'n (1890) 1011(1).] 133 Ill. 556, 25 N. E. 52, 9 L, R. A. 371, 23 3. APPEAL AND ERROR 1011(1) – SCOPE — Am. St. Rep. 637; Dezell v. Fidelity, etc.,

REVIEWING EVIDENCE. Co. (1903) 176 Mo. 253, 75 S. W. 1102; Carnes able to the appellee can be considered, since

In such case, only the evidence most favorv. Iowa State Traveling Men's Ass'n (1898) the court is without power to weigh the evi106 Iowa, 281, 76 N. W. 683, 68 Am. St. Rep. dence. 306; McGlinchey v. Fidelity, etc., Co. (1888) [Ed. Note.--For other cases, see Appeal and 80 Me. 251, 14 Atl. 13, 6 Am. St. Rep. 190; Error: Cent. Dig. $$ 3983–3988; Dec. Dig. Own

1011(1).] Jenkins v. Hawkeye Commercial Men's Ass'n, 147 Iowa, 113, 124 N. W. 199, 30 L. R. A. Appeal from Circuit Court, Clark County ; (N. S.) 1181; 1 C. J. 431, 432, 433. See, also, James M. Fortune, Judge. Maryland Casualty Co. v. Hudgins (1903) 97 Application by Franklin M. Rose, for vaTex, 124, 76 S. W. 745, 64 L. R. A. 349, 104 cation of a street in the City of JeffersonAm. St. Rep. 857, 1 Ann. Cas. 252.

ville, opposed by such city. From a judgIt is contended by appellant that ptomaine ment denying wacation, the applicant ap poison is a disease, and that consequently peals. Affirmed. a recovery for injury therefrom is expressly Wilmer Fox, of Jeffersonville, for appelexcluded by the terms of the policy. We are lant. Jonas G. Howard, of Jeffersonville, of the opinion that, under the facts disclosed for appellee. here, the ptomaine poison did not constitute a disease within the meaning of the language ERWIN, J. Appellant filed his petition in of the policy exempting appellant from lia- the Clark circuit court for the vacation of bility for injuries caused by disease. Rail. Eighth street, in the city of Jeffersonville, way Mail Ass'n v. Dent, supra; Brintons v. from Wall street east for a distance of 188.7 Turvey (1905) A. C. 230, 2 Ann. Cas. 137 (an- feet, more or less, to the eastern side of the thrax infection case).

alley midway of blocks Nos. 78 and 94. The The complaint was sufficient to repel ap- petition was based upon Act 1907, p. 617, bepellant's demurrers, and there was evidence ing sections 8910-8916, Burns 1914. Appelthat supported its material averments. lee filed its remonstrance, alleging that the

Appellant filed an amended fourth para- street proposed to be vacated is necessary to graph of answer to which the court sustained the growth of the city; that the vacation a demurrer. Appellant seeks here to chal-would leave real estate of remonstrant withlenge such ruling; but because of its failure to out ingress or egress by means of a public comply with rule 22 of this court (55 N. E. v) way; and that such vacation would cut off in the preparation of its brief, it has waived the public's access to some church, school its right to a consideration of the question. or other public building or grounds. The

Complaint is made of certain instructions cause was tried by the court, resulting in a given, and of the failure to give requested judgment denying the vacation of the street.

aFor uther cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

UTE.

Appellant filed a motion for a new trial, ter such liquors and to permit them to be drunk upon the grounds: (1) That the decision of on the premises where sold, is not a continuing the court is not sustained by sufficient evi- one, but each unlawful sale constitutes a sepa

rate offense. dence; and (2) that the decision of the court

[Ed. Note.-For other cases, see Intoxicating is contrary to law.

Liquors, Cent. Dig. § 194; Dec. Dig. 174.] (1) Appellee contends in its brief that ap- 2. CRIMINAL LAW Omw 200(4) IDENTITY OF pellant's brief is insufficient to present any OFFENSES-ILLEGAL SALE OF LIQUOR-STATquestion to this court for decision. It claims that the brief does not comply with St. 1914, 38351, making it a misdemeanor for

If a person, in violation of Burns' Ann. rule 22 of this court (55 N. E. v), in that an unlicensed person to sell or barter intoxiunder the title of "Statement of the Rec-cants, or to do so and permit them to be drunk ord,” neither the petition, remonstrance, intoxicants and permits them to be drunk on

on the premises, makes an unlawful sale of finding of the court, entry showing the file the premises, he commits a single offense, and, ing of the motion for new trial, motion for if convicted of making an unlawful sale, could new trial, entry showing the ruling on the not be again convicted of making the same sale motion for new trial and exceptions there and permitting the liquor to be drunk on the

premises. to, entry showing judgment, nor entry [Ed. Note. For other cases, see Criminal showing the filing of the general bill of ex- Law, Cent. Dig. & 397; Dec. Dig. Om 200(4).] ceptions are shown in full or in substance. 3. CRIMINAL LAW 198, 200(4)-RUNNING It is also contended that the brief does not

PLACE FOR ILLEGAL SALES-CONTINUING contain a condensed recital of the evidence

CHARACTER OF OFFENSE-STATUTE. in narrative form so as to present the sub-1914, 8351, of operating a place where intoxi

A person convicted under Burns' Ann. St. stance clearly and concisely, as required by cants are sold, and of having liquor in bis posclause 5, of rule 22 of this court. Appel- session for such purpose, cannot be successfully lant's brief gives part of the evidence of prosecuted for running a place where intoxicat

ing liquors were sold at any time within two part of the witnesses and shows that some years previous to the return of the indictment parts of the evidence have been omitted, ex- under which he was convicted, but such concept for a conclusion of the writer of the viction does not prevent the state from prosebrief as to what the evidence shows. This such two years and within the statute of limi

cuting him for every sale of liquor made during is not sufficient. That which is required by tations. the rule is the substance of what the wit [Ed. Note. For other cases, see Criminal nesses have said in giving their testimony. Law, Cent. Dig. 88 385, 397; 'Dec. Dig.

198, 200(4).] Webster v. Bligh (1911) 50 Ind. App. 56, 98 N. E. 73; Cleveland, etc., R. Co. v. Bowen, 4. CRIMINAL LAW Cm 200(1)—IDENTITY OF OF

FENSES-SINGLE ACT. (1913) 179 Ind. 142, 100 N. E. 465; McClel

A single criminal act may constitute two lan v. Thomas (1915) 183 Ind. 310, 109 N. E. or more distinct or separate offenses, and in 44. For this reason alone this court is jus- such case the state need not elect upon which tified in affirming the judgment herein. Su will not bar prosecution for the other.

offense it will proceed, and a conviction of one preme Tribe, etc., V. Kraft (1915) 183 Ind.

(Ed. Note. For other cases, see Criminal 427, 428, 109 N. E. 403.

Law, Cent. Dig. § 386; Dec. Dig. Om 200(1).] [2] The record in this cause shows that 5. CRIMINAL LAW m 372(2)—IDENTITY OF there is a conflict in the evidence upon the OFFENSES ILLEGAL SALE OF LIQUOR

STATUTE. issues presented to the trial court. The finding of the trial court must be sustained St. 1914, $ 8351, by running a place where in

In a prosecution for violating Burns' Ann. on appeal if there is some evidence to sup-toxicants were illegally sold, the trial court port it. As this court has no power to properly admitted, and the jury could consider, weigh conflicting evidence, it can consider evidence relative to a single sale made by de

fendant in violation of the provision of the statonly the evidence most favorable to appellee ute, also making it a misdemeanor for an unin passing upon the question thus presented licensed person to sell intoxicants, although deby the motion for new trial. Western Union fendant had previously pleaded guilty to and Tel. Co. v. Louisville, etc., R. Co. (1915) 183 been fined for such offense, since the statute de

fines two separate and distinct misdemeanors. Ind. 258, 108 N. E. 951; Southern Product

[Ed. Note.-For other cases, see Criminal Co. v. Franklin Coil Hoop Co. (1915) 183 Law, Cent. Dig. 88 833, 834; Dec. Dig. Ind. 123, 129, 106 N. E. 872.

372(2).] There being no reversible error presented Appeal from Circuit Court, Montgomery by the record, the judgment is affirmed. County; Jere West, Judge.

Fred Woodworth was convicted of unlaw

fully keeping, running, and operating a place (185 Ind. 582)

where intoxicating liquors were sold in violaWOODWORTH v. STATE. (No. 23077.)

tion of law, and he appeals. Judgment af(Supreme Court of Indiana. Nov. 22, 1916.)

firmed. 1. INTOXICATING LIQUORS 174 ILLEGAL SALE-CONTINUING CHARACTER OF OFFENSE

Ira Clouser and Johnston & Johnston, all -STATUTE.

of Crawfordsville, for appellant. E. B. StotThe offense defined by Burns' Ann. St. senburg, Atty. Gen., W. H. Linn, of Craw1914, § 8351, making it a misdemeanor for an fordsville, and Thomas H. Branaman, of unlicensed person to sell or barter intoxicants except as elsewhere provided, or to sell or bar- / Brownstown, for the State.

LAIRY, J. On the 3d day of May, 1915, , fines two separate and distinct misdemeanors. appellant was charged by affidavit with vio By the first it is made a misdemeanor for lating the provisions of section 8351, Burns an unlicensed person to sell or barter intoxi1914, by selling to William Picket, on the cating liquors except as elsewhere provided, first day of that month, two pints of beer or to sell or barter such liquors and permit without then and there having a license to them to be drunk on the premises where sold. sell intoxicating liquors. The affidavit was The offense thus defined is not a continuing filed before the mayor of Crawfordsville, one, as claimed by appellant, but each unand on the same day it was filed appellant ap- lawful sale constitutes a separate offense. peared and pleaded guilty, and was fined in However, if a person in violation of this the sum of $50.

part of the section makes an unlawful sale Afterwards the grand jury of Montgomery of intoxicating liquors and permits them to county returned an indictment in the circuit be drunk on the premises, he commits but court of that county in three counts, the a single offense, and if he were convicted of third count of which charged that appellant, making the unlawful sale he could not be on or about the 17th day of May, 1915, un- again convicted of making the same sale and lawfully kept, ran, and operated a place permitting the liquor to be drunk on the therein described, located in the county of premises. Long v. State, 56 Ind. 182, 26 Am. Montgomery where intoxicating liquors were Rep. 19; State v. Reed, 168 Ind. 588, 81 N. sold, bartered, and given away in violation E. 571, and cases cited. of law. The first two counts of the indict By a later provision of the same section it ment were dismissed before the case went is made a misdemeanor for any person to to the jury, and they need no further men- keep, run, or operate a place where intoxition. Appellant was convicted on the third cating liquors are sold in violation of law, count. This appeal is taken from a judg- or to have such liquor in his possession for ment rendered on the verdict.

such purpose. The offense thus defined is a By his motion for a new trial appellant continuing one. Donovan v. State, 170 Ind. questions several rulings of the court made 123, 83 N. E. 744. A person convicted of such during the progress of the trial. It is as an offense cannot be successfully prosecuted serted that the court erred in permitting for running and operating a place where inwitnesses to testify as to a transaction which toxicating liquors were sold at any time withoccurred on the 1st day of May, 1915, on the in two years previous to the return of the inpremises described in the indictment as the dictment under which he was convicted, but place kept and operated by appellant for the such conviction does not prevent the state unlawful sale of intoxicating liquors. The from prosecuting him for every sale of liqevidence in question shows that appellant on uor made during such two years and within the 1st day of May sold two bottles of beer the statute of limitations to William Picket, and that while he and a The gravamen of the first offense defined friend were drinking the beer on the prem- by the section of the statute under consideraises two policemen, accompanied by the pros- tion is the unlawful sale of Intoxicating liqecuting attorney, entered the place, and, arm uors by a person without a license, while ed with a search warrant, searched for and that of the second offense defined is the keepfound intoxicating liquors in an ice box. ing and operating of a place where such liqThe mayor's docket was also in evidence, uors are sold in violation of law, or the havshowing that appellant was charged with ing of such liquors in possession for such making an unlawful sale to William Picket purpose. Evidence sufficient to convicta on the 1st day of May, and that he pleaded person of the first offense would not necesguilty, and was fined.

sarily be sufficient to sustain a conviction of Appellant contends that evidence of the the second, and the converse of this proposisale made on the 1st day of May was not tion is equally true. admissible to prove that he was engaged in Appellant cites and relies upon the case of operating a place where intoxicating liquors Fritz v. State, 40 Ind. 18. In that case the were sold in violation of law, for the reason court held that a person who had been chargthat he had been once convicted and punish-ed and convicted of the commission of an afed for making such sale, and that the state fray by fighting with another by agreement having elected to punish him once under one in a public place could not be afterward conprovision of section 8351 cannot punish him victed of an assault and battery upon the a second time for the same act under another person with whom he fought in the commisprovision of the same section.

sion of such affray. There can be no doubt [1-3] The fallacy of the argument in sup. of the correctness of the conclusion reached port of appellant's position consists in an as- in that case, but the reasoning employed does sumption that the offense of selling intoxicat- not meet our approval. A person could not ing liquors without a license is the same of commit an affray without committing an asfense charged in the third count of the in- sault and battery. The latter offense was dictment upon which appellant was convicted clearly included within the former, and the in this case. Section 8351, Burns 1914, de law is well settled that the conviction of a

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