Banks v. State

• Decision Date: 24 June 1919
• Docket Number: No. 23535.,23535.
• Parties: BANKS v. STATE.
• Court: Indiana Supreme Court

188 Ind. 353

123 N.E. 691

BANKS

v.STATE.

No. 23535.

Supreme Court of Indiana.

June 24, 1919.

Appeal from Circuit Court, Sullivan County; Wm. H. Bridwell, Judge.

John Banks was convicted of violating Acts 1917, c. 4, § 4, relating to intoxicating liquors, and he appeals. Affirmed.

Arthur D. Cutler, of Sullivan, for appellant.

Ele Stansbury and Dale F. Stansbury, both of Indianapolis, for the State.

LAIRY, C. J.

[1] Appellant was charged by indictment in the trial court with violating section 4 of the act of 1917 relating to intoxicating liquors. Acts 1917, p. 15. The indictment charged that appellant at the county of Sullivan and the state of Indiana did, on the 24th day of May, 1918, unlawfully keep intoxicating liquor, with intent then and there to barter, exchange, give away, furnish and otherwise dispose of the same in the state of Indiana in violation of the laws of the state of Indiana. A trial by jury resulted in a verdict of guilty. Omitting the formal parts, the verdict of the jury is in the words following:

“We, the jury find the defendant guilty as charged in the indictment and assess his punishment at a fine of $300, and imprisonment in the county jail for a period of three months, 90 days in the penal farm.”

Appellant filed a motion for a venire de novo based on the ground that the verdict was so indefinite, uncertain, ambiguous, and defective that no judgment could be rendered thereon. This motion was overruled, and this ruling is assigned as error.

The court did not err in overruling this motion. Section 8 of the act of 1913, providing for the establishment of the Indiana State Farm, makes it the duty of all judges of circuit, superior, and criminal courts to commit to that institution all male persons, above the age of commitment to the Indiana Boy's School, who have been convictedof the violation of any criminal law or of any ordinance the punishment for which formerly consisted of imprisonment in the county jail. Under the proviso of this section the court has a discretion to commit to either the county jail or the state farm, where the imprisonment is 60 days or less; but in this case, where the term of imprisonment was 90 days, it was the absolute duty of the court to commit the defendant to the state farm. In the light of this statute the verdict was not ambiguous or uncertain as to the place of imprisonment. Section 9926h, Burns 1914.

[2] Error is also assigned on the action of the court in overruling the motion of appellant for a new trial, which was based on the grounds that the verdict is contrary to law, that the verdict is not sustained by sufficient evidence, and that the court erred in giving to the jury instruction No. 7.

The evidence most favorable to appellant shows that a few days before he was arrested he had a conversation with his son-in-law, in which a fishing trip was planned for the following Saturday, in which both of their families were to participate. It was agreed between them that they would take some beer and whisky along to be used by them and their families on that occasion, and appellant agreed to procure the liquor. His son-in-law gave him $4, and appellant bought $8 worth of liquor, using the money given him by his son-in-law and an equal amount of his own money. At the time he was arrested, he had the liquor so purchased in his possession with intent to carry out the arrangement and for no other purpose. For the purpose of the appeal the state admits that the evidence is undisputed, and the whole transaction occurred just as appellant said it did.

Under this state of facts appellant asserts that he acted as agent for his son-in-law in purchasing the portion of liquor intended for the use of him and his family, that the title therein passed to him at the time of the purchase and not to appellant, and that a future delivery to him would not constitute a sale, barter, exchange, gift, or a furnishing or other disposition of intoxicating liquor within the meaning of the act. He cites a number of cases to sustain his position. State v. Cunningham, 25 Conn. 195; Du Bois v. State, 87 Ala. 101, 6 South. 381;Garbracht v. Commonwealth, 96 Pa. 449, 42 Am. Rep. 550.

The state admits that, under the authorities cited, appellant could not be held guilty of an intent to sell, barter, exchange, or give away the liquor in his possession, but it is asserted that the facts show that he intended to furnish or otherwise dispose of it.

The sole question for decision is thus presented. Do the facts show that appellant intended to furnish the liquor in his possession to others, within the meaning of the word as used in the act?

To furnish means to supply for use. It does not necessarily imply a change in title. The master may furnish tools to a workman for use, the title remaining in the master. This common use of the term shows that the owner of property may furnish it to another by a mere delivery for use, but does a person furnish a thing to another by carrying and delivering to him an article of...