Chappell v. State

• Decision Date: 18 February 1926
• Docket Number: No. 24150.,24150.
• Citation: 150 N.E. 769,197 Ind. 272
• Parties: CHAPPELL v. STATE.
• Court: Indiana Supreme Court

197 Ind. 272

150 N.E. 769

CHAPPELL

v.STATE.

No. 24150.

Supreme Court of Indiana.

Feb. 18, 1926.

Appeal from Criminal Court, Marion County; Frank S. Roby, Judge.

George Chappell was convicted of violating the Prohibition Law, and he appeals. Reversed, with instructions.

Robbins, Weyl & Jewett, of Indianapolis, for appellant.

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

MYERS, J.

The record at bar brings to our attention two affidavits, one of date November 18, 1921, and the other November 25, 1921, both filed in the city court of Indianapolis as of the date on which they were each executed. The affidavit of November 25th is in four counts, 1 to 4, both inclusive, and the affidavit of November 18th has five counts, 2 to 6, both inclusive.

On November 25, 1921, appellant was convicted in the city court, and he appealed to the criminal court of Marion county, where he was again tried before a special judge February 8, 1922, and found guilty “as charged in the second count of the affidavit.” Count 2 in both affidavits charged a violation of section 1, Acts 1921, p. 736, c. 250 (section 8356d, Burns' Supp. 1921). Count 2 of the November 18th affidavit charged that appellant “did then and there unlawfully manufacture, transport, and possess intoxicating liquor; and did then and there unlawfully keep and have in his possession intoxicating liquor, with intent then and there to sell *** and otherwise dispose of the same. ***” Count 2 of the November 25th affidavit charged that on November 25, 1921 appellant “did then and there unlawfully keep intoxicating liquor, to wit, whisky, *** with intent then and there to sell *** and otherwise dispose of the same, ***” and that on August 1, 1921, and on October 22, 1921, appellant was convicted, etc.

The overruling of appellant's motion for a new trial, wherein he asserted that the decision of the court was not sustained by sufficient evidence, that it was contrary to law, and that the court erred in excluding certain testimony, is the only error relied on for a reversal.

Other than a stipulation that on August 1, 1921, and on October 22, 1921, appellant was convicted of possessing home brew, there is no evidence whatever referring to an offense committed by him on November 25th. All of the evidence pertains to an offense starting with the morning of November 17, 1921 when two Indianapolis police officers and two federal prohibition officers, with a search warrant, appeared at the home of appellant and searched the same. Hence we must assume that his conviction rests on count 2 of the November 18th affidavit.

As to the evidence disclosed by the search, it appears that in a little closet in an upstairs small bedroom they found three 5-gallon jugs, containing white mule whisky, wrapped in gunny sacks in the kitchen on the floor behind the stove range, in plain view of any one entering the room, 59 bottles containing liquid variously termed by the witness as “home brew,” “beer,” “home-made beer,” and “root beer,” and on the back porch on a table three bottles of “regular beer.” The officers took charge and removed all of the jugs and bottles containing the liquor. Without dispute it appears that for a week continuously, prior to 10 o'clock the night before the morning the search was made and the liquor found, appellant was in Hamilton county on a hunting trip, and while he was thus away from home his wife made the beer. As an explanation for the presence of the whisky, appellant's wife testified that she subrented five rooms of their house, and on Tuesday next before Thursday when the search was made she rented the room in which the whisky was found to one Frank Roberts, who, on Tuesday evening, brought it there and paid her $15 for the privilege of leaving it a few days. The prohibition officers testified to admissions and statements made by appellant's wife out of court as to how the whisky came to her house, which, in some respects, tended to contradict her testimony, but none of her statements, either in or out of court, connected her husband with any of the liquor. Appellant's statement to the officers at the time of the search was that he knew nothing about the whisky being in the house, or how it came to be there. At the trial he denied knowing anything about the whisky before it was found, said he had nothing whatever to do with it. There was no showing that he was engaged in any business which would likely induce his customers to call for intoxicants, nor evidence that he sold or offered to sell any of the liquor, or that he in any other manner offered or disposed of any of it, nor evidence from which any inference might be drawn that he manufactured or transported it.

[1] Mere possession of intoxicating liquor was not an offense under the 1921 act, supra,...