Durst v. State, 23464.
| Citation | 190 Ind. 133,128 N.E. 920 |
| Decision Date | 17 December 1920 |
| Docket Number | No. 23464.,23464. |
| Parties | DURST v. STATE. |
| Court | Supreme Court of Indiana |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Delaware County; S. W. Haynes, Special Judge.
George T. Durst was convicted of operating a place where intoxicating liquors were unlawfully sold, having in possession intoxicating liquors for the purpose of unlawfully selling them, and he appeals. Affirmed.Cromer & Long and White & Haymond, all of Muncie, for appellant.
Eli Stansbury and A. B. Cronk, both of Indianapolis, and Dale F. Stansbury, of Covington, for the State.
On January 28, 1917, the grand jury of Delaware county returned an indictment against the appellant, which indictment is in the words and figures as follows, to wit:
“The grand jurors of Delaware county, state of Indiana, being duly and legally impaneled, charged, and sworn, upon their oaths do charge and present that George T. Durst, on or about the 1st day of April, 1916, at and in the county of Delaware, state of Indiana, did then and there unlawfully keep, run, and operate a place where intoxicating liquors were then and there unlawfully sold, bartered, and given away, in violation of the laws of the state of Indiana, and was then and there found unlawfully in possession of intoxicating liquors for the purpose of then and there unlawfully selling, bartering, and giving the same away, in violation of the laws of the state of Indiana, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Indiana.”
The defendant entered a plea of not guilty to said charge and upon the issue thus formed a trial was had resulting in a verdict of guilty. Judgment was rendered on such verdict, and from the judgment defendant appeals. The questions presented by the appeal arise on motion for a new trial: (1) Error in giving and refusing certain instructions; (2) error in admitting and excluding certain evidence; (3) error in impaneling the jury.
The appellant claims that the court erred in giving instruction No. 10, given by the court of its own motion, and gives as a reason for his objection that the instruction in effect tells the jury that if the defendant had sold, bartered, or given away any intoxicating liquors he was guilty of operating a place. Appellant gives as another reason of objection that it was error to instruct the jury that it was not necessary to prove that defendant was the owner or proprietor of the place, and also that said instruction fails to inform the jury that the state must have shown beyond a reasonable doubt that the defendant kept, ran, and operated the place. None of appellant's objections are well taken.
The defendant was not charged with the selling of intoxicating liquors in violation of law, but he was charged with the unlawful keeping, running, and operating a place where intoxicating liquors were unlawfully sold, bartered, and given away in violation of laws of the state of Indiana, and that he was found in the unlawful possession of intoxicating liquors for the purpose of unlawfully selling, bartering, and giving away the same in violation of the laws of the state. The gist of the action is the keeping of a place where intoxicating liquors are disposed of in violation of law.
This instruction nowhere tells the jury that if the defendant had sold, bartered, or given away any intoxicating liquors he was guilty of operating a place. Such construction is wholly unwarranted. This instruction correctly tells the jury that it is not necessary to show that the defendant was the owner of the place, or that he held a lease for it. The appellant may have been neither the owner, lessee, or proprietor of the place, but yet may have been unlawfully in the possession, at such place, of intoxicating liquors for the purpose of unlawfully disposing of the same in violation of the statute under which this indictment was drawn, or he may have kept, run, or operated the place where intoxicating liquors were sold, bartered, or given away, although he was not the owner of such place, or he may have been the owner of the place and had it leased to some one else. If appellant had owned the intoxicating liquors, been interested in the sales, and shared the profits, he would have been guilty although he was not the owner, lessee, or proprietor of the place where the liquor was kept or where the unlawful sales were made. See Dugan v. State, 187 Ind. 32, 118 N. E. 307.
There was evidence tending to show that appellant was in charge of the business during a considerable period of the time covered and at the place named in the indictment; that he kept intoxicating liquors in such place, and sold the same in violation of law. If this evidence is true, and the jury had the right to believe it, the appellant would be guilty although he may have been the owner of the building, and may have had it leased to some one during the time. Other instructions, given by the court, fully state the law of reasonable doubt. The instruction is not open to the objections urged against it.
Instruction No. 12, given by the court of its own motion, correctly states the law. It informs the jury that the offense with which appellant is charged is the unlawful keeping, running, and operating a place where intoxicating liquors were unlawfully sold, bartered, and given away in violation of law, and that he was found in the unlawful possessionof intoxicating liquors for the purpose of unlawfully selling, bartering, and giving same away in violation of the laws of the state, and that to make a prima facie case against the defendant it is not enough that the evidence in the case show that intoxicating liquors were kept in a room or building, but there must be evidence establishing beyond a reasonable doubt that the defendant had the custody or possession of such liquors, and that defendant kept the liquors in a room, building, or other place.
The instruction further informs the jury that, in order to show this it is not necessary to show that the defendant was the owner of the place, or that he held a lease for it, and that if they found from the evidence that the defendant owned the place and leased it to another, but had an interest in the place as an individual, partner, manager, or director, or any other interest, and such interest so connected him with the business as to give him knowledge of the facts in the conduct of such business, and they found all the other facts alleged in the indictment beyond a reasonable doubt, they had a right to consider such facts in determining whether the state had made out a case. See Donovan v. State, 170 Ind. 123, 83 N. E. 744. This instruction was not erroneous.
Instruction No. 13 informs the jury that if they found beyond a reasonable doubt that a certain written instrument, which had been introduced in evidence and which purported to be a lease to one H. Brown, was not in fact delivered to said Brown, or to any one for him, then the writing was never executed. This instruction correctly stated the law on that subject, and if the appellant wanted the jury instructed on what facts would constitute a delivery of a written instrument, or on the presumption arising from taking possession by the lessee, such an instruction should have been tendered. Brewster v. State, 186 Ind. 369, 115 N. E. 54.
The appellant insists that instruction No. 6 tendered by defendant, should have been given, and that it was error to refuse to give it. That instruction is as follows:
“The court instructs you that acts of third parties out of the presence of the defendant, and not shown to have been in the employ of defendant, unless said acts are shown to have been done or committed at the instigation or direction or command of defendant, should not be considered by you as affecting the guilt of the defendant.”
The defendant claims that Raymond Dudley was the proprietor of the business and had full control of it, and that Dudley was not in his employ, and consequently the acts of Dudley and others in the conduct of said business could not be considered in determining the guilt or innocence of said defendant. Kit Maynard, a witness for the state, described the building and the rooms in it, and said there were a number of persons employed upstairs. He also testified that the money that was taken in upstairs from the various operations, including the sale of beer, was taken down below and put in the safe in a tin box. He says every morning Mr. Durst came up and counted out the money; then he would make a deposit slip, and take it over to the People's Trust Company, using People's Trust Company deposit slips. This witness says that he saw him counting the money every morning during the entire time witness was there. This witness Maynard testified that he was in the employ of defendant at that place for 18 months, ending March, 1916. From this evidence the jury may have found that Dudley, Maynard, and others were engaged in business with defendant as partners, and in that event their acts introduced in evidence might properly be considered by the jury as affecting the guilt of defendant. The tendered instruction was properly refused. See Dugan v. State, 187 Ind. 32, 118 N. E. 307;Donovan v. State, 170 Ind. 123, 83 N. E. 744.
It was not error to refuse to give instruction No. 10, tendered by appellant, for the reason that the substance of said instruction is fully given in instruction No. 9, given by the court of its own motion. Instruction No. 10, tendered by appellant, is as follows:
“The court instructs you that if you find from the evidence in this case that the defendant was the owner of the building and the premises at 107 West Main street, in the city of Muncie, and that he leased or rented said building and premises to another with the knowledge that said building and premises were to be used for the unlawful sale of intoxicating liquors, such knowledge by the...
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