84 Ind. 562 (Ind. 1882), 10,371, Showalter v. State

Docket Nº:10,371
Citation:84 Ind. 562
Opinion Judge:Howk, J.
Party Name:Showalter v. The State
Attorney:T. D. Evans, for appellant. L. H. Stanford, Prosecuting Attorney, for the State.
Court:Supreme Court of Indiana

Page 562

84 Ind. 562 (Ind. 1882)



The State

No. 10,371

Supreme Court of Indiana

November, 1882

          From the Union Circuit Court.

          The judgment is reversed, and the cause is remanded with instructions to sustain the motion for a new trial, and for further proceedings.

         T. D. Evans, for appellant.

         L. H. Stanford, Prosecuting Attorney, for the State.


Page 563

         Howk, J.

         In this case the indictment charged that the appellant, on the 17th day of March, 1882, at and in Union county, Indiana, unlawfully sold to one Joseph Orr spiritous and intoxicating liquor, in a less quantity than a quart, to wit, one gill of whiskey, at and for the price of ten cents, he, the appellant, not then and there having a license so to sell such liquor, contrary to the form of the statute, etc.

         Upon appellant's arraignment and plea of not guilty, the issues joined were tried by a jury, and a verdict was returned finding him guilty, as charged in the indictment, and assessing his punishment at a fine in the sum of $ 40. Over his motion for a new trial, and his exception saved, the court rendered judgment on the verdict.

         The only error assigned by appellant is the overruling of his motion for a new trial. Under this error, his counsel earnestly insist that the verdict of the jury was not sustained by sufficient evidence. The following facts, it seems to us, were fairly established by the evidence in the record: The appellant lived in the village of Brownsville, in Union county, Indiana; his dwelling and business house, and out-buildings, were all under one roof; his business room was separated from his residence by a partition, reaching from the floor to the ceiling, in which there was neither door nor window; the residence was occupied by his family, consisting of himself and his wife, and his two grown step-children; in the business

Page 564

room there was a stove and a drawer; the drawer was so arranged that it would slide through the partition, between the business room and the family residence, and slide back and forth as occasion might require; the prosecuting witness testified, in substance, that, on March 17th, 1882, he went into that business room to get a drink of whiskey; that there was no person present in the room; that he dropped a dime in the drawer, and called for whiskey; that no one answered, and he saw no person; that the...

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