Chief Eagle Feather v. State, 13665.
| Decision Date | 27 June 1929 |
| Docket Number | No. 13665.,13665. |
| Citation | 167 N.E. 147,89 Ind.App. 500 |
| Parties | CHIEF EAGLE FEATHER et al. v. STATE. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Brown Circuit Court; J. Wilson, Special Judge.
Chief Eagle Feather and others were convicted of maintaining a liquor nuisance, and they appeal. Reversed, with instructions.
Arthur L. Gilliom, Atty. Gen., and Bernard A. Keltner, Deputy Atty. Gen., for the State.
The appellants, Chief Eagle Feather, Princess Silverheels, and Charles F. Crump, were tried and convicted of maintaining a nuisance-a place where persons were permitted to resort for the purpose of drinking intoxicating liquor as a beverage -in violation of section 2740, Burns' 1926. Their joint and several motion for a new trial was overruled, and they now prosecute this appeal, presenting as alleged errors (a) the overruling of their motion to quash the affidavit; and (b) the overruling of their motion for a new trial, under which last specification they present alleged error in the giving of certain instructions, and that the verdict is not sustained by sufficient evidence.
It appears from the record that in 1925, Chief Eagle Feather and his wife Princess Silverheels, purchased 100 acres of land, unfenced, in Brown county, Indiana, paying therefor the sum of $700; that this land was located on State Road No. 26, east of Nashville, and on the highway leading from Nashville to Columbus, and that after said appellants purchased the land they called it “Ookomis Indian Reservation”; that the appellant Chief Eagle Feather is a Cherokee Indian; that he is a “medicine man,” and gathers roots and herbs, from which he prepares and sells medicine under the name of “Indiana Medicine.”
It also appears that in 1926 he and his wife conceived the idea of operating an “amusement park” upon said land, and in July of that year they entered into a contract with Charles F. Crump, also appellant herein, by Which Crump was to advance the money and build what buildings were needed to operate such enterprise, and was to receive all the profits therefrom until he should be fully paid for money advanced, after which he was to receive one-half of the profits therefrom, the agreement covering a five-year period. Under this agreement Crump constructed a covered dancing pavilion, 40x60 feet, which was located in the timber at some distance from the log cabin residence of Eagle Feather. Concessions were let to persons for refreshment stands, and the place opened as an amusement park.
On June 4, 1927, a raiding party, led by one Carl Losey, of Franklin, Ind., and armed with a search warrant, went to these grounds. An automobile in which some of the raiding party had come to the grounds was stopped on a bridge across a ravine a short distance from the pavilion, and thereby the way of exit from said grounds was blocked. The officers read the search warrant to the employee in charge, and announced their purpose in coming to the place, when a party in an automobile then on the grounds attempted to leave the premises, but, finding the road blocked, he threw from his automobile a quart jar containing white whisky, which jar the officers obtained. They also searched that part of the premises where patrons parked their automobiles, and there found some empty pop and coca-cola bottles, which, from their smell, had contained whisky. The record does not disclose that any building or structure was searched. The affidavit charging the appellants with maintainging a nuisance was filed September 20, 1927.
[1] The appellants first challenge the sufficiency of the affidavit herein, to which their motion to quash was overruled. While said affidavit contains matters which are surplusage, yet it distinctly charges an offense to have been committed on June 4, 1927, and was sufficient as against a motion to quash.
We shall next consider the sufficiency of the evidence, and in so doing we must keep in mind the statute, with the violation of which the appellants were charged, and also keep in mind a portion of section 2741, Burns' 1926. Section 2740, Burns' 1926, so far as the same is herein involved, is as follows:
“Any room, house, building, boat, structure, or place of any kind where intoxicating liquor is sold, manufactured, bartered, or given away in violation of law, or where persons are permitted to resort for the purpose of drinking intoxicating liquor as a beverage, or any place where such liquor is kept for sale, barter, or gift in violation of the laws of this state, and all intoxicating liquor, and all property kept in and used in maintaining such a place, are hereby...
To continue reading
Request your trial