Darbyshire v. State

• Decision Date: 27 October 1925
• Docket Number: No. 24633.,24633.
• Citation: 149 N.E. 166,196 Ind. 608
• Parties: DARBYSHIRE v. STATE.
• Court: Indiana Supreme Court

196 Ind. 608

149 N.E. 166

DARBYSHIRE

v.STATE.

No. 24633.

Supreme Court of Indiana.

Oct. 27, 1925.

Appeal from Circuit Court, Delaware County; C. W. Dearth, Judge.

Charles Darbyshire was convicted of unlawfully selling intoxicating liquor, and of unlawfully maintaining a common nuisance, and he appeals. Reversed, with instructions.Walterhouse & Miller, of Muncie, for appellant.

U. S. Lesh, Atty. Gen., for the State.

MYERS, J.

Appellant was found guilty as charged in two counts of an affidavit of unlawfully selling intoxicating liquor, in violation of Acts 1923, p. 70, c. 23, § 1, and of unlawfully maintaining and assisting in maintaining a common nuisance. Acts 1917, p. 15, c. 4, § 20.

Appellant's motion to quash each count of the affidavit separately and severally for want of facts to state a public offense, and for failure to state an offense with sufficient certainty, and his motion for a new trial and motion in arrest of judgment were each in the order here noted overruled. Judgment on the verdict. The errors assigned call in question each of the foregoing rulings.

No good purpose will be subserved by taking the time and space necessary to pass upon the questions presented by the motion to quash and in arrest, as the motion for a new trial should have been sustained for want of evidence.

At the close of the evidence, the first three counts of the affidavit were withdrawn, and, for aught appearing, appellant was convicted of the offense charged in each of the other two. In applying the evidence brought to our attention by the record, it will be observed that count 4 charged that appellant “did then and there (county of Deleware, state of Indiana) unlawfully sell, barter *** and dispose of intoxicating liquors to divers persons to affiant unknown”; and count 5, (1) that he “unlawfully maintained and assisted in maintaining a common nuisance, to wit, a room, house, building, and place where intoxicating liquors were then and there manufactured, sold, *** in violation of the laws of this state”; (2) “and where persons were then and there permitted to resort for the purpose of drinking said intoxicating liquors as a beverage”; and (3) “unlawfully keep intoxicating liquors in, and use the same in maintaining said place.”

The testimony of four policemen was all the evidence given at the trial, from which it appears that on December 1, 1923, those officers, armed with a search warrant, proceeded to the home of appellant in the nighttime, and on knocking at the front and side doors, and failing to receive an immediate response and general welcome, thereupon “kicked the door in,” and found appellant clothed in a union suit and engaged in pouring some white mule whisky out of bottle into a basket of kindling wood. They read the search warrant to him, took charge of the bottle containing a “small” amount of liquor, and then placed him under arrest. Appellant was in the house alone. The search resulted in finding a “quart bottle in another room that had a small amount of white whisky in it. We found three empty pint bottles and a small glass on a little washstand.” One witness, apparently aggressively hostile to appellant, on being asked how long he had known the defendant, and what was his business during that time, answered, “Five or six years. None that I know of only liquor traffic.”

The foregoing narration covers every item of evidence relied on by the state. It may be said that when the officers went to the home of appellant he had possibly all told a quart of intoxicating liquor.

Counsel for appellee insist that “from these facts the jury was warranted in drawing the inference of guilt, viz., that appellant unlawfully maintained a common nuisance.” In our opinion counsel are mistaken. From their briefs we are impressed with the thought that the basis for their insistence lies in the construction they place on section 29, Acts 1917, p. 15, c. 4; section 8356c1, Burns' Supp. 1921, which provides that-

“If fluid be poured out or otherwise destroyed by the tenant or other persons when the premises are being searched, said fluid shall be held to be prima facie intoxicating liquor and intended for unlawful sale.”

[1][2] It will be noticed that this statute applies to the fluid when the act of pouring occurs during the search by declaring such fluid “prima facie intoxicating liquor and intended for unlawful sale.” It was designed to provide against the defeat of a search warrant by declaring a certain act under certain circumstances prima facie evidence of other facts necessary to be...