Scherer v. State

• Decision Date: 16 May 1917
• Docket Number: No. 23195.,23195.
• Parties: SCHERER v. STATE.
• Court: Indiana Supreme Court

187 Ind. 15

116 N.E. 52

SCHERER

v.STATE.

No. 23195.

Supreme Court of Indiana.

May 16, 1917.

Appeal from Circuit Court, Hamilton County; Ernest E. Cloe, Judge.

Harry Scherer was convicted of selling intoxicating liquors without a license, and he appeals. Affirmed.

Floyd G. Christian, Ralph H. Waltz, and Ira W. Christian, all of Noblesville, for appellant. Ele Stansbury, of Williamsport, U. S. Lesh, of Huntington, E. E. Hastings, of Washington, Ind., Edward M. White, of Indianapolis, and John G. McCord, of Pine Village, for the State.

MYERS, J.

Appellant was charged by indictment with selling intoxicating liquors without a license. Trial by jury, verdict of guilty, and a fine of $50 assessed. Judgment was rendered accordingly. Appellant has appealed to this court and assigned as error: (1) That the indictment does not state facts sufficient to constitute a public offense; (2) that the trial court erred in overruling his notion for a new trial.

[1] The indictment, in so far as it is material to the questions here presented, charges that on January 9 or 10, 1916, appellant, at the county of Hamilton, and state of Indiana, did sell to Oscar Woddel one pint of whisky and two pint bottles of beer without then and there having a license to sell intoxicating liquors according to the laws of the state of Indiana. The objection urged against the indictment is that it does not state any price for which the liquor was sold. The attention of the trial court was not called to this objection by a motion to quash, and under the ruling of this court in the case of Boos v. State, 181 Ind. 562, 105 N. E. 117, that question must be considered as waived. Hay v. State, 178 Ind. 478, 98 N. E. 712, Ann. Cas. 1915C, 135;Pittsburgh, etc., R. Co. v. Home Ins. Co., 183 Ind. 355, 359, 108 N. E. 525.

Appellant insists with some earnestness that the failure to allege the price paid for the liquor was the omission of a material fact, without which the trial court did not acquire the jurisdiction, and therefore within the exception stated in section 3, Acts 1911, p. 415 (section 348, Burns 1914). This contention cannot be sustained. It is not claimed that the court did not have jurisdiction of the person of appellant, nor can it be said that it did not have jurisdiction of the subject-matter.

The Hamilton circuit court is a court of general jurisdiction. Long v. Ruch, 148 Ind. 74, 47 N. E. 156. It had jurisdiction over the class of cases to which the case at bar belongs (section 1433, Burns 1914; United States, etc., Ins. Co. v. Clark, 41 Ind. App. 345, 83 N. E. 760) and the mere failure to plead the price paid for the liquor would not go to the jurisdiction of the court over the subject-matter.

Appellant, in support of his motion for a new trial, among others, urges eight reasons, all to the effect that the court erred in excluding certain evidence.

[2] The defense was an alibi, and a brief statement of the evidence most favorable to appellant as a basis for his insistence will not be out of place. It is undisputed that on January 9, 1916, a chicken show was held at what is known as Magnetic Springs Park, located immediately west of the town of Cicero, in Hamilton county, Ind., and during the evening was visited by more than 250 persons; that the prosecuting witness, who was the sheriff of Hamilton county, arrived at the park about 12 o'clock that night, and between 12 and 1 o'clock on the morning of January 10th purchased liquor from someone there on that occasion. The building which housed the chickens was owned by C. B. Scherer, appellant's father, who lived in a part of it. In another part he conducted a restaurant, and on the evening in question he was engaged in serving lunch to all requesting such service. Appellant, at the time, assisted generally his father about the premises. One of the spectators, a stranger in that vicinity, with others, arrived at the town of Cicero with several suit cases and boxes. These suit cases and boxes were taken by a small wagon from the interurban station about 8 o'clock to the building of C. B. Scherer and into the basement. On arrival at the building one of the suit cases was opened by the stranger, who took therefrom a bottle of whisky and a bottle of beer and offered the witness a drink. Several witnesses testified that appellant was upstairs, and not in the room where the alleged...