Collins v. State, 28223.

• Decision Date: 31 October 1946
• Docket Number: No. 28223.,28223.
• Citation: 69 N.E.2d 173,224 Ind. 509
• Parties: COLLINS v. STATE.
• Court: Indiana Supreme Court

224 Ind. 509

69 N.E.2d 173

COLLINS

v.STATE.

No. 28223.

Supreme Court of Indiana.

Oct. 31, 1946.

James Collins was convicted of unlawfully selling alcoholic beverages, and he appeals.

Cause remanded for sole purpose of imposing sentence in conformity with statute.Appeal from Morgan Circuit Court; Omar O'Harrow, Judge.

Gilbert W. Butler, of Martinsville, for appellant.

James A. Emmert, Atty. Gen., and Frank E. Coughlin and Geo. W. Hadley, Deputy Attys. Gen., for the State.

O'MALLEY, Judge.

The appellant was charged by affidavit with unlawfully selling alcoholic beverages. He entered a plea of ‘not guilty,’ and having waived a jury, trial was had before the court. At the conclusion of the evidence the court adjudged the appellant guilty as charged, and after overruling the motion for a new trial, sentenced him to the Indiana State Farm for a period of 90 days and fined him in the sum of $10. The overruling of the motion for a new trial is the assigned error.

There was evidence that on the 24th day of February, 1946, the appellant sold a bottle of ‘Seagram Whiskey’ to the prosecuting witness for the sum of $7; that the sale took place at the home of the appellant in Brooklyn, Morgan County, Indiana; that the appellant did not have a permit or license to sell intoxicating liquors; and that the product so sold was intoxicating liquor.

It is true that the appellant denied making the sale and that witnesses testified that the prosecuting witness did not go to the home of appellant on the day on which the sale was charged as having been made. The conflict thus created was for the determination of the trial court. On appeal, the applicable rule is correctly stated in Swope v. State, 1942, 220 Ind. 40, 42, 39 N.E.2d 947, where it is said:

‘In passing upon the sufficiency of the evidence, this court will consider only that evidence most favorable to the state.’

The appellant claims that it was incumbent on the State of Indiana to prove that the prosecuting witness was not a guest of the applicant. With this claim we cannot agree. The affidavit does contain the negative of this claim, but that was not a necessary allegation, nor would the appellant have been entitled to an acquittal even if it had been proved that the purchaser was his guest. In the absence of a permit or license, the statute does not authorize sales of intoxicants to guests. See § 12-605, Burns' 1942 Replacement. There is ample evidence on which to base the decision of the court.

The statute above referred to plainly states the limits...