Bond v. State

• Decision Date: 14 October 1927
• Docket Number: No. 25204.,25204.
• Citation: 158 N.E. 241,199 Ind. 484
• Parties: BOND v. STATE.
• Court: Indiana Supreme Court

199 Ind. 484

158 N.E. 241

BOND

v.STATE.

No. 25204.

Supreme Court of Indiana.

Oct. 14, 1927.

Appeal from Criminal Court, Marion County; Frank A. Symmes, Judge, pro tem.

Leo Bond was convicted of possessing and selling intoxicating liquor and maintaining a common nuisance, and he appeals. Affirmed.

Joseph K. Brown, of Indianapolis, for appellant.

Arthur L. Gilliom, Atty. Gen., and Bernard A. Keltner, Deputy Atty. Gen., for the State.

GEMMILL, J.

Appellant was prosecuted on an affidavit in three counts, in which he was charged with unlawful possession of intoxicating liquor, unlawful sale of intoxicating liquor, and maintaining a common nuisance, in violation of sections 4 and 24, c. 48, Acts 1925. The trial was by the court without a jury He was found guilty on each count, and a judgment of fine and imprisonment was rendered against him for each offense. He has assigned as error the overruling of his motion for a new trial.

[1] One of the causes for a new trial was that the court erred in overruling a motion to quash the affidavit. This cause cannot be considered, as it should have been presented as a separate assignment of error.

[2] A motion was filed by appellant to suppressand reject the evidence of two witnesses named therein. It is claimed that the court erred in overruling same. The record does not show any ruling on this motion. In the absence of such ruling from the record, appellant cannot raise any question in regard to it.

[3] It is stated that the court erred twice in permitting Roy Hallipeter to give certain testimony. The record does not show that this party was a witness.

[4] Another reason for a new trial was surprise which ordinary prudence could not have guarded against in regard to the evidence of Charles McMurray. This witness answered only two questions. He testified that he was 20 years old and had not quit a named high school. Appellant could not have been harmed by this testimony.

[5] The appellant insisted that the finding of the court was not sustained by sufficient evidence. And, in connection therewith, he contended that the evidence was incompetent which showed that a pint of gin was sold by Charles McMurray, a clerk in appellant's drug store, when appellant was not present, as it was not shown that he consented, commanded, aided, or abetted therein. In Thompson et al. v. State (1920) 189 Ind. 182, 125 N. E. 641, the court said:

“In order to sustain a conviction against appellant Thompson it was necessary for the state to prove complicity between him and his servant, Willingham, in the illegal sale made by the latter. If appellant aided or abetted his servant in doing the unlawful acts which constituted the misdemeanor charged, or if he counseled, encouraged, hired, commanded, directed, or otherwise induced him to do such act, he is guilty of the commission of the misdemeanor charged as a principal.”

The court also said:

“For the purpose of showing that the appellant Thompson furnished the whisky, the sale of which by his servant constituted the corpus delicti of the offense charged, and that he encouraged, directed, hired, or commanded his servant to make the sale in question, it was competent to prove a state of facts and circumstances from which his participation or complicity in the sale by his servant might be rightly and reasonably inferred.”

The mere selling of intoxicating liquor by an agent is not sufficient to warrant a conviction of the principal, but, if the circumstances are such that it may be inferred that the sale was made with the consent or knowledge of the principal, then he is equally guilty with the agent, and may be criminally liable. Ex parte Souza (1923) 65 Cal. App. 9, 222 P. 869. Where evidence shows that a bartender sold beer and whisky in defendant's barroom and placed the money in defendant's cash register, and that other liquor belonging to defendant was on the premises, inference is warranted that the bartender was defendant's representative, although the defendant was not present. Ferry v. United States (C. C. A. 1923) 292 F. 583.

[6][7] In the instant case, part of the evidence of one of the purchasers was as follows:

“I leaned over the edge of the counter and asked Charles for a pint of gin. He said, ‘I don't know you.’ I said, ‘I don't know you either; it is mutual.’ He said, ‘Has Leo been selling you?’ I said, ‘No, sir; a man I saw.’ I said, ‘I will wait until Leo comes back.’ I asked what time he would be back, and h...