Booher v. State

• Decision Date: 15 October 1926
• Docket Number: No. 24757.,24757.
• Citation: 153 N.E. 497,198 Ind. 315
• Parties: BOOHER et al. v. STATE.
• Court: Indiana Supreme Court

198 Ind. 315

153 N.E. 497

BOOHER et al.

v.STATE.

No. 24757.

Supreme Court of Indiana.

Oct. 15, 1926.

Appeal from Greene Circuit Court; Thomas Van Buskirk, Judge.

Earl Booher and another were convicted of conspiring to transport liquor in an automobile, and they appeal. Affirmed.

Cox, Welliver & Walsh, of Indianapolis, and James M. Hudson, of Bloomfield, for appellants.

U. S. Lesh, Atty. Gen., and Mrs. Edward Franklin White, Deputy Atty. Gen., for the State.

GEMMILL, J.

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 section 641, c. 169, Acts of 1905, in section 2647, Burns' 1914, and in section 2882, Burns' 1926. The law making it a felony to transport intoxicating liquor in an automobile is in section 1, c. 34, Acts of 1923, and in section 2720, Burns' 1926. 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 horse thief detective association had found white mule whisky, about 3 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: “Well, boys, I have no complaint to make. The road turns on you some day.” 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 75 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 3 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 intoxicatinq 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 15 to 18 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 200 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 quart, and came back to the place, and started south about 300 or 400 yards from where we first got the half gallon, going back south they buried it there again on the east side of the road.” It is also insisted that the court erred in admitting and refusing to strike out the testimony of the said second witness that 18 months prior to the date on which he was testifying he had a conversation with the defendant Ogle Booher, in which the latter stated that he had a falling out with one Roy Smith who used to bootleg with him, and that he (Ogle Booher) and his brother, Earl Booher, “was going to start selling whisky together”; and that within 2 years prior to the date on which he was testifying he had a conversation with Ogle Booher in which he said that he and his brother Earl had a still up near Linton, and that it was a good one, and they were going to make whisky and had plenty of whisky around Linton, that they went up there, starting about 12 o'clock at night, and brought their whisky back about daybreak in the morning, and that Roy Cook at the Elkhorn drug store was furnishing him what bottles he used for that whisky, and that within a year prior to the date on which the witness was testifying he had a conversation with Earl Booher in which said Earl Booher told him the way or manner they distributed their liquor along the country roads.

Appellants say that there could have been no conspiracy to commit the felony of transporting liquor prior to March 1, 1923, for the reason that not until that date was it made a felony to transport liquor, and that the testimony...