Booher v. State
| Decision Date | 15 October 1926 |
| Docket Number | 24,757 |
| Citation | 153 N.E. 497,198 Ind. 315 |
| Parties | Booher et al. v. State of Indiana |
| Court | Indiana Supreme Court |
1. EVIDENCE.---Evidence of other similar acts admissible to show intent.-When it becomes material to show the intent with which an act was done, it is relevant for such purpose to prove other similar acts previously performed, and any fact which proves or tends to prove the particular intent is competent. p. 320.
2. CRIMINAL LAW.---Evidence of prior crimes and other transactions relating to intoxicating liquor is admissible in prose- cution for conspiracy to transport liquor in automobile, even though such acts did not then constitute felonies or crimes.- In a prosecution for conspiracy to transport intoxicating liquor in an automobile evidence of prior violations of the prohibition law and of other transactions relative to liquor is admissible as showing the intent with which the acts were committed which were the basis of the charge against the defendants, even though such prior violations did not constitute felonies or the other transactions at that time were not crimes at all p. 320.
3. CRIMINAL LAW.---Where evidence should be limited to the purpose for which it was admitted, it will be presumed that this was done.-Where, in a prosecution for conspiracy to commit the felony of transporting intoxicating liquor in an automobile, evidence was admitted of prior violations of the prohibition law and of other transactions relating to intoxicating liquor, for the purpose of showing defendants' intent in the acts with which they were charged, it being the duty of the court to limit the jury's consideration of such evidence to the purpose for which it was competent, it will be presumed that this was done, the record showing nothing to the contrary. p. 320.
4. CONSPIRACY.---May be proved by circumstantial evidence tending to show a common purpose in commission of various acts pursuant to an agreement.-In a prosecution for conspiracy to commit a felony (2882 Burns 1926), proof of a formal conspiracy is not essential, but the existence of the conspiracy may be established by circumstantial evidence, as by proof of acts done in the consummation of an apparent common purpose pursuant to an intelligent and deliberate agreement. p. 322.
5 CONSPIRACY.---Evidence held sufficient to sustain conviction for conspiracy to transport intoxicating liquor in automobile.- In a prosecution for conspiracy to transport intoxicating liquor in an automobile, where the evidence of the conspiracy was wholly circumstantial, evidence that defendants had been guilty of manufacturing liquor on a large scale, transporting and selling it, was sufficient to sustain a conviction. p. 322.
From Greene Circuit Court; Thomas VanBuskirk, Judge.
Earl Booher and another were convicted of conspiracy to transport intoxicating liquor in an automobile, and they appeal.
Affirmed.
Cox, Welliver & Walsh and James M. Hudson, for appellants.
U. S. Lesh, Attorney-General and Mrs. Edward Franklin White, Deputy Attorney-General, for the State.
The appellants have appealed from a judgment rendered against them in the Greene Circuit Court where they were prosecuted on the charge of conspiracy to transport intoxicating liquor in an automobile. The crime of conspiracy to commit a felony is defined in § 641, Acts 1905 p. 584, § 2882 Burns 1926. The law making it a felony to transport intoxicating liquor in an automobile is in § 1, Acts 1923 p. 108. This law went into effect on March 1, 1923. The trial was by jury. The overruling of their motion for a new trial is assigned as error. The causes for a new trial are alleged errors on rulings in admitting and refusing to strike out certain evidence, and the sufficiency of the evidence to sustain the verdict.
From the evidence, it appears: That members of a horsethief detective association had found white mule whisky, about three miles northeast of Linton, buried in the ground near a public highway. On the night of November 15, 1923, members of said association arrested the appellants, who were brothers, at that place, where the appellants had driven an automobile. Just prior to the arrests, Ogle Booher took a jug of whisky from the place where it was buried and Earl Booher was only a short distance from him when they learned that they were being watched. Ogle Booher threw the jug of whisky and ran to the automobile, and he said at the time of the arrest: The whisky was taken to the police headquarters at Linton. Another jug of white mule whisky was found about 200 yards from the place where one of the appellants took the jug from the ground. About seventy-five holes were found near the road where something had been buried. One of the appellants had bought a great many pint and quart bottles at a pharmacy in Linton within the last year. Appellants denied transporting intoxicating liquor in an automobile and denied any intention of doing so at that time. One of them testified that the whisky had been buried there for his own use, and that it had been planted there by the man from whom it had been bought. It was admitted by defendants that their reputations in the vicinity of Linton where they lived were bad for morality. Evidence as to certain former acts of appellants and certain declarations made by them will be noticed later herein.
It is contended by appellants that the court erred in admitting and refusing to strike out the testimony of one witness for the state to the effect that three years before the time he was testifying, he was with each of the defendants in an automobile when they had intoxicating liquors and "hauled it a number of places," and he was with each of the defendants in a car when they hauled intoxicating liquors from Linton to "a camp over on White river at the covered bridge down here," and was in a car with each of the defendants when they hauled intoxicating liquors out on parties "to be driven around in cars and drunk"; and in admitting and refusing to strike out the testimony of another witness for the state to the effect that about fifteen to eighteen months before the time he was testifying, he was in an automobile with both of the defendants along the Buck Creek road northeast of Linton where, in the language of the witness, "we went out there to have a few drinks probably two hundred yards before you come to the turn back where the boys were arrested on South side of the road," where one of the defendants got out and "got a half gallon of red whisky and we drove around through the country and drunk probably maybe not as much as a...
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