Page images
PDF
EPUB

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 expellee. cepted to have been brought to this court as reserved questions of law under section 2162 and section 2211, cl. 3, Burns 1914, and the decision of them by us is invoked by the state.

MORRIS, J. Suit by appellee against appellant on an accident policy. The first paragraph of complaint alleges that appellant insured 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 tried, which affidavit is in one count, whether he was charged with embezzlement as a fiduciary (Burns 1914, § 2293), or as an agent (section 2285, Burns 1914). Because of this uncertainty and the peculiar state of facts disclosed by the evidence, we do not feel called upon to pass in detail upon the 31 questions reserved. The decision of none of them, for the reasons given, would serve the purpose for which appeals by the state on reserved questions of law are provided. That purpose is to obtain opinions of this court on questions of law which shall declare a rule for the guidance of and which shall be binding on the inferior courts of the state. It is to settle questions likely again to arise in the trial of criminal prosecutions. No such questions are presented in this appeal. The decision of those presented would, in the main, confuse rather than clarify the

law.

Several of the assignments of error seek to raise the question whether it is error of law on the part of the trial court in its instructions to the jury unduly to emphasize

and repeat that the evidence must show the

guilt of the defendant beyond a reasonable

ently of any and all other causes from bodi-
ly injury effected solely through external,
violent and accidental means"; that said
James R. Griffis lost his life by such means
because he ate mushrooms tainted with pto-
maine poison; that the death was not con-
tributed to by disease, either directly or in-
directly. A second paragraph of complaint
differed from the first, in that it alleged that
the death resulted from the accidental eat-
ing or drinking of a poisonous substance the
nature of which was unknown. A demurrer
to each paragraph was overruled. There
was a trial with verdict and judgment for
appellee for $6,645.
lenges the sufficiency of each paragraph of
Appellant here chal-
complaint, and also the sufficiency of the evi-

dence.

from liability for injury "resulting from or The policy expressly exempted appellant contributed to, directly or indirectly, wholly or partially, by disease."

The evidence for appellee shows that formerly decedent Griffis was a lawyer of Randeath he and his wife resided at Cleveland, dolph county; that immediately before his Ohio, about four miles from the business center of the city; that on October 25, 1913, at returned. The practice of repeating in in- about 7 o'clock p. m., Mr. and Mrs. Griffis structions vital questions to one side or the left their place of residence and went to a 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 this particular to the instructions in this

doubt before a verdict of conviction may be

case.

The appeal is not sustained.

(186 Ind. 126)

for the evening meal, where Mr. Griffis ate some mushrooms at about 8 o'clock p. m.; that thereupon they went home, arriving there at about 9 p. m.; that Mr. Griffis, about 15 minutes thereafter, went to his bedroom to prepare for retiring, while Mrs. Griffis went to the bathroom to take a bath, and

UNITED STATES CASUALTY CO. v. GRIF- where she was occupied for about 30 min

FIS. (No. 22851.)*

(Supreme Court of Indiana. Nov. 21, 1916.)
INSURANCE 455- ACCIDENT INSURANCE
PTOMAINE POISONING "ACCIDENTAL
MEANS."

utes; that she then heard water running at a sink near Mr. Griffis' bedroom and went to turn off the water; that on arriving at the sink she discovered a quantity of mushrooms that had been vomited by her husband; that she then went to Mr. Griffis' bedroom, and found him lying across his bed, dressed in his nightclothes, moan[Ed. Note. For other cases, see Insurance, ing and unconscious; that she immediateCent. Dig. §§ 1166-1169; Dec. Dig. 455.] ly telephoned Dr. Placak, who arrived in

Death from ptomaine poisoning from eating mushrooms, supposed to be edible, is from "accidental means. and not from disease, within an accident policy.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
*Rehearing denied.

1

R. A. (N. S.) 422, 112 Am. St. Rep. 232, 6
Ann. Cas. 551.

15 minutes and administered medical treatment without effect; that at that time Mr. 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 what he purposed; that, though the result was unexpected, the means employed was not, and recovery was proper only when the means employed was accidental. The opinion deals with Paul v. Travelers' Ins. Co., supra, and some other cases, in the following language:

It is not contended by appellant that Mr. Griffis was guilty of any negligence in partaking of the mushrooms, or that in such act he intended to eat food containing a poisonous substance. Paul v. Travelers' Ins. Co., 112 N. Y. 472, 20 N. E. 347, 3 L. R. A. 443, 8 Am. St. Rep. 758, was decided by the New York 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 insured was a mere accident. In Maryland Casthe body was found, the air in his sleeping ualty Co. v. Hudgins, 97 Tex. 124, 76 S. W. chamber 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 death were eaten by the deceased in ignorance of their unsound condition. In Paul v. Travloss 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 which caused his death. None of these decied judgment to the beneficiary. The judg-sions is inconsistent with the view which we ment was affirmed by the Court of Appeals, take of the case at bar." in an opinion holding that:

"An 'accident' is the happening of an event without the aid and the design of the person and which is unforeseen. ** As to the point raised by the appellant that the death was not caused by external and violent means, within the meaning of the policy, we think it a sufficient answer that the gas in the atmosphere, as an external cause, was a violent agency, in the sense that it worked upon the intestate so as to cause his death. That a death is the result of accident, or is unnatural, imports an external and violent agency as the cause."

The case was cited with approval by this court in Etna Life Ins. Co. v. Fitzgerald

This case is also cited by counsel for appellee, who claim that it supports their contention that the injury here in question was caused by accidental means, and this claim appears to us as well founded. Under the facts pleaded and proven, Mr. Griffis intended only to eat wholesome mushrooms; but, unexpectedly to him, the mushrooms eaten contained a foreign substance that was a virulent poison and constituted an agency of such violent character as to subvert the normal functions of his vital organs and produce death possibly quicker than would

been a corrosive acid poison. We quite agree with appellant's counsel when they say that the means must be accidental, and that a mere accidental result would not suffice under the language of this policy; but we are of the opinion that the unintentional taking of the poisonous substance contained in what deceased supposed to be edible mushrooms constituted an accidental means which caused the death. In support of our conclusion we cite the following: Peele v. Prov. Fund Soc.,

[ones. What we have said in reference to the
complaint and evidence disposes of appel-
lant's principal contentions relative to in-
structions given and refused. In other re-
spects we are satisfied that there was no
reversible error committed.
Judgment affirmed.

(185 Ind. 577)

ROSE v. CITY OF JEFFERSONVILLE. (No. 22889.)

1. APPEAL AND ERROR 757(3)
SUFFICIENCY OF BRIEFS.

[ocr errors]

SCOPE

Under Court Rule 22, cl. 5 (55 N. E. v), stating the requisites of the record on appeal, the brief must contain the substance of the testimony, and is insufficient if it contains only part of the testimony of part of the witnesses, coupled with the writer's conclusions.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. 757 (3).]

2. APPEAL AND ERROR 1011(1)—SCOPE. Where the record shows a conflict in the evidence, and the appeal is for insufficiency of evidence as indicated by the motion for new trial, the judgment must be sustained if there is any evidence to support it.

147 Ind. 543, 44 N. E. 661, 46 N. E. 990; (Supreme Court of Indiana. Nov. 21, 1916.) Johnson v. Fidelity & Casualty Co. (1915) 184 Mich. 406, 151 N. W. 593, L. R. A. 1916A, 475, and note page 481 (a ptomaine poison case); Bohaker v. Travelers' Ins. Co. (1913) 215 Mass. 32, 102 N. E. 342, 46 L. R. A. (N. S.) 543; Clark v. Iowa State Traveling Men's Ass'n, 156 Iowa, 201, 135 N. W. 1114, 42 L R. A. (N. S.) 631; Railway Mail Ass'n v. Dent, 213 Fed. 981, 130 C. C. A. 387, L. R. A. 1915A, 314; Hill v. Hartford Accident Ins. Co. (1880) 22 Hun (N. Y.) 187; Kennedy v. Etna Life Ins. Co. (1903) 31 Tex. Civ. App. 509, 72 S. W 602; Pollock v. U. S. Mut. Accident Ass'n (1883) 102 Pa. 230, 48 Am. Rep. 204; Metropolitan Accident Ass'n v. Froiland (1896) 161 Ill. 30, 43 N. E. 766, 52 Am. St. Rep. 359; Healey v. Mut. Accident Ass'n (1890) 133 Ill. 556, 25 N. E. 52, 9 L. R. A. 371, 23 Am St. Rep. 637; Dezell v. Fidelity, etc., Co. (1903) 176 Mo. 253, 75 S. W. 1102; Carnes v. Iowa State Traveling Men's Ass'n (1898) 106 Iowa, 281, 76 N. W. 683, 68 Am. St. Rep. 306: McGlinchey v. Fidelity, etc., Co. (1888) 80 Me. 251, 14 Atl. 13, 6 Am. St. Rep. 190; Jenkins v. Hawkeye Commercial Men's Ass'n, 147 Iowa, 113, 124 N. W. 199, 30 L. R. A. (N. S.) 1181; 1 C. J. 431, 432, 433. See, also, Maryland Casualty Co. v. Hudgins (1903) 97 Tex. 124, 76 S. W. 745, 64 L. R. A. 349, 104 Am. St. Rep. 857, 1 Ann. Cas. 252.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3988; Dec. Dig. 1011(1).]

3. APPEAL AND ERROR 1011(1) — SCOPE — REVIEWING EVIDENCE.

able to the appellee can be considered, since In such case, only the evidence most favorthe court is without power to weigh the evidence.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3988; Dec. Dig. 1011(1).]

Appeal from Circuit Court, Clark County; James M. Fortune, Judge.

Application by Franklin M. Rose, for vacation of a street in the City of Jeffersonville, opposed by such city. From a judgment denying vacation, the applicant appeals. Affirmed.

It is contended by appellant that ptomaine poison is a disease, and that consequently 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 of the policy exempting appellant from liability for injuries caused by disease. Railway Mail Ass'n v. Dent, supra; Brintons v. Turvey (1905) A. C. 230, 2 Ann. Cas. 137 (anthrax infection case).

The complaint was sufficient to repel appellant's demurrers, and there was evidence that supported its material averments.

ERWIN, J. Appellant filed his petition in the Clark circuit court for the vacation of Eighth street, in the city of Jeffersonville, from Wall street east for a distance of 188.7 feet, more or less, to the eastern side of the alley midway of blocks Nos. 78 and 94. The petition was based upon Act 1907, p. 617, being sections 8910-8916, Burns 1914. Appellee 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.

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

Appellant filed a motion for a new trial upon the grounds: (1) That the decision of the court is not sustained by sufficient evidence; and (2) that the decision of the court is contrary to law.

It

[1] Appellee contends in its brief that appellant's brief is insufficient to present any question to this court for decision. claims that the brief does not comply with rule 22 of this court (55 N. E. v), in that under the title of "Statement of the Record," neither the petition, remonstrance, finding of the court, entry showing the filing of the motion for new trial, motion for new trial, entry showing the ruling on the motion for new trial and exceptions thereto, entry showing judgment, nor entry showing the filing of the general bill of exceptions are shown in full or in substance. It is also contended that the brief does not contain a condensed recital of the evidence in narrative form so as to present the substance clearly and concisely, as required by clause 5, of rule 22 of this court. Appellant's brief gives part of the evidence of part of the witnesses and shows that some parts of the evidence have been omitted, except for a conclusion of the writer of the brief as to what the evidence shows. This is not sufficient. That which is required by the rule is the substance of what the witnesses have said in giving their testimony. Webster v. Bligh (1911) 50 Ind. App. 56, 98 N. E. 73; Cleveland, etc., R. Co. v. Bowen, (1913) 179 Ind. 142, 100 N. E. 465; McClellan v. Thomas (1915) 183 Ind. 310, 109 N. E. 44. For this reason alone this court is justified in affirming the judgment herein. Supreme Tribe, etc., v. Kraft (1915) 183 Ind. 427, 428, 109 N. E. 403.

[2] The record in this cause shows that there is a conflict in the evidence upon the issues presented to the trial court. The finding of the trial court must be sustained on appeal if there is some evidence to support it. As this court has no power to weigh conflicting evidence, it can consider only the evidence most favorable to appellee in passing upon the question thus presented by the motion for new trial. Western Union Tel. Co. v. Louisville, etc., R. Co. (1915) 183 Ind. 258, 108 N. E. 951; Southern Product Co. v. Franklin Coil Hoop Co. (1915) 183 Ind. 123, 129, 106 N. E. 872.

There being no reversible error presented by the record, the judgment is affirmed.

[blocks in formation]

ter such liquors and to permit them to be drunk on the premises where sold, is not a continuing one, but each unlawful sale constitutes a separate offense.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 194; Dec. Dig. 174.] 2. CRIMINAL LAW 200(4) IDENTITY OF OFFENSES-ILLEGAL SALE OF LIQUOR-STAT

UTE.

If a person, in violation of Burns' Ann. St. 1914, § 8351, making it a misdemeanor for an unlicensed person to sell or barter intoxicants, or to do so and permit them to be drunk on the premises, makes an unlawful sale of intoxicants and permits them to be drunk on the premises, he commits a single offense, and, if convicted of making an unlawful sale, could not be again convicted of making the same sale and permitting the liquor to be drunk on the premises.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 397; Dec. Dig. 200(4).] 3. CRIMINAL LAW 198, 200(4)-RUNNING PLACE FOR ILLEGAL SALES-CONTINUING CHARACTER OF OFFENSE-STATUTE.

A person convicted under Burns' Ann. St. 1914, § 8351, of operating a place where intoxicants are sold, and of having liquor in his possession for such purpose, cannot be successfully prosecuted for running a place where intoxicating liquors were sold at any time within two years previous to the return of the indictment under which he was convicted, but such conviction does not prevent the state from prosecuting him for every sale of liquor made during such two years and within the statute of limitations.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 385, 397; Dec. Dig. 198, 200(4).]

4. CRIMINAL LAW 200(1)—IDENTITY OF OFFENSES SINGLE ACT.

A single criminal act may constitute two or more distinct or separate offenses, and in such case the state need not elect upon which offense it will proceed, and a conviction of one will not bar prosecution for the other.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 386; Dec. Dig. 200(1).] 5. CRIMINAL LAW 372(2)-IDENTITY OF OFFENSES ILLEGAL SALE OF LIQUOR STATUTE.

In a prosecution for violating Burns' Ann. St. 1914, § 8351, by running a place where intoxicants were illegally sold, the trial court properly admitted, and the jury could consider, evidence relative to a single sale made by defendant in violation of the provision of the statute, also making it a misdemeanor for an unlicensed person to sell intoxicants, although defendant had previously pleaded guilty to and been fined for such offense, since the statute defines two separate and distinct misdemeanors.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dec. Dig. 372(2).]

Appeal from Circuit Court, Montgomery County; Jere West, Judge.

Fred Woodworth was convicted of unlawfully keeping, running, and operating a place where intoxicating liquors were sold in violation of law, and he appeals. Judgment affirmed.

Ira Clouser and Johnston & Johnston, all of Crawfordsville, for appellant. E. B. Stotsenburg, Atty. Gen., W. H. Linn, of Crawfordsville, and Thomas H. Branaman, of 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 violating the provisions of section 8351, Burns 1914, by selling to William Picket, on the first day of that month, two pints of beer without then and there having a license to sell intoxicating liquors. The affidavit was filed before the mayor of Crawfordsville, and on the same day it was filed appellant appeared and pleaded guilty, and was fined in the sum of $50.

By the first it is made a misdemeanor for an unlicensed person to sell or barter intoxicating liquors except as elsewhere provided, or to sell or barter such liquors and permit them to be drunk on the premises where sold. The offense thus defined is not a continuing one, as claimed by appellant, but each unlawful sale constitutes a separate offense. However, if a person in violation of this 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 indictment were dismissed before the case went to the jury, and they need no further mention. Appellant was convicted on the third count. This appeal is taken from a judgment rendered on the verdict.

By his motion for a new trial appellant questions several rulings of the court made during the progress of the trial. It is asserted that the court erred in permitting witnesses to testify as to a transaction which occurred on the 1st day of May, 1915, on the premises described in the indictment as the place kept and operated by appellant for the unlawful sale of intoxicating liquors. The evidence in question shows that appellant on the 1st day of May sold two bottles of beer to William Picket, and that while he and a friend were drinking the beer on the premises two policemen, accompanied by the prosecuting attorney, entered the place, and, armed with a search warrant, searched for and found intoxicating liquors in an ice box. The mayor's docket was also in evidence, showing that appellant was charged with making an unlawful sale to William Picket on the 1st day of May, and that he pleaded guilty, and was fined.

By a later provision of the same section it is made a misdemeanor for any person to keep, run, or operate a place where intoxicating liquors are sold in violation of law, or to have such liquor in his possession for such purpose. The offense thus defined is a continuing one. Donovan v. State, 170 Ind. 123, 83 N. E. 744. A person convicted of such an offense cannot be successfully prosecuted for running and operating a place where intoxicating liquors were sold at any time within two years previous to the return of the indictment under which he was convicted, but such conviction does not prevent the state from prosecuting him for every sale of liquor made during such two years and within the statute of limitations.

The gravamen of the first offense defined by the section of the statute under consideration is the unlawful sale of intoxicating liquors by a person without a license, while that of the second offense defined is the keeping and operating of a place where such liquors are sold in violation of law, or the having of such liquors in possession for such purpose. Evidence sufficient to convict a person of the first offense would not necessarily be sufficient to sustain a conviction of the second, and the converse of this proposition is equally true.

[ocr errors]

Appellant cites and relies upon the case of Fritz v. State, 40 Ind. 18. In that case the court held that a person who had been charg

Appellant contends that evidence of the sale made on the 1st day of May was not admissible to prove that he was engaged in operating a place where intoxicating liquors were sold in violation of law, for the reason that he had been once convicted and punish-ed and convicted of the commission of an afed for making such sale, and that the state having elected to punish him once under one provision of section 8351 cannot punish him a second time for the same act under another provision of the same section.

fray by fighting with another by agreement in a public place could not be afterward convicted of an assault and battery upon the person with whom he fought in the commission 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

« PreviousContinue »