
    State of Indiana v. Rosenbaum.
    [No. 3,057.
    Filed November 3, 1899.]
    Intoxicating» Liquors. — Saloon. —Occupants During Unlawful Hours. —Former Acquittal. — A saloon-keeper who permits two or more persons to enter his saloon during prohibited hours cannot be prosecuted for a separate offense as to each of such persons under §5323c Horner 1897 making it unlawful for the proprietor of'such place to permit “anyperson or persons other than himself and family to go into such room ” during prohibited hours.
    Prom the Jasper Circuit Court.
    
      Affirmed.
    
    
      W. L. Taylor, Attorney-General, Merrill Moores, G. 0. Ifadley and A. F. Ghizum, for State.
    
      F. Foltz, G. G. Spitler and H. B. Kwrrie, for appellee.
   Robinson, J. —

Appellee was indicted for permitting a person named to be and remain in his place of business during prohibited hours, contrary to the provisions of §3 of the act of March 11, 1895 (Acts 1895 p. 248).

Appellee pleaded in abatement, setting up a former indictment and acquittal, that the person named in the present indictment as having been in the saloon was in company with the person named in the former indictment, and that the acts complained of in the present indictment are identical with those complained of in the former indictment of which he had been acquitted. A demurrer to this plea was overruled, and upon this ruling the appeal is based.

The question presented is, can the proprietor of a place where liquors are sold, who permits two or more persons at the same time to be in the room during prohibited hours, be prosecuted for a separate offense as to each of such persons? The Attorney-General, in his brief, states that he is of the opinion that the question must be answered in the negative.

In Smith v. State, 85 Ind. 553, the court said: “The true test to determine the sufficiency or insufficiency of a plea of former acquittal as a bar to the pending prosecution is this: Would the same evidence be necessary to secure a conviction in the pending, as in the former, prosecution? If it would be, then the plea of former acquittal would be a complete bar to the pending prosecution; otherwise, the plea would not be sufficient.”

The case of State v. Elder, 65 Ind. 282, 32 Am. Rep. 69, states the following rule: “When the facts constitute but one offense, though it may be susceptible of division into parts, as in larceny for stealing several articles of property at the same time, belonging to the same person, a prosécution to final judgment for stealing a part of the articles will be a bar to a subsequent prosecution for stealing any other part of the articles, stolen by the same act.” See, also, State v. Gapen, 17 Ind. App. 524; Davidson v. State, 99 Ind. 366; Fritz v. State, 40 Ind. 18; Wininger v. State, 13 Ind. 540; Brinkman v. State, 57 Ind. 76.

The statute makes it unlawful for the proprietor to permit “any person or persons other than himself and family” to go into the room at prohibited times. In the case at bar the crime committed was permitting “persons other than himself to go into such room” during prohibited hours.' It was a single offense which can not be split up and prosecuted in parts. “A prosecution for any part of a single crime bars any further prosecution based upon the whole or a part of the same crime.” Laupher v. State, 14 Ind. 327. The appeal is not sustained.  