Eaton v. State
| Decision Date | 07 March 1917 |
| Docket Number | 23,145 |
| Citation | 115 N.E. 329,186 Ind. 167 |
| Parties | Eaton v. State of Indiana |
| Court | Indiana Supreme Court |
From Gibson Circuit Court; John K. Chappel, Special Judge.
Prosecution by the State of Indiana against John H. Eaton. From a judgment of conviction, the defendant appeals.
Reversed.
Hovey C. Kirk and Morton C. Embree, for appellant.
Evan B Stotsenburg, Attorney-General, and Wilbur T. Gruber, for the State.
Appellant was charged by affidavit with keeping a place where intoxicating liquors were sold in violation of law, and with having the liquors in his possession for such purpose. The charge was presented under § 1 of the act of March 16 1907, commonly called the "Blind Tiger" law (Acts 1907 p. 689, § 8351 Burns 1914). A jury returned a verdict finding appellant guilty, as charged in the affidavit, of keeping, running and operating a place where intoxicating liquors were sold, bartered and given away in violation of the laws of the State of Indiana, and assessed his fine, etc.
Appellant to sustain his appeal, relies entirely upon the alleged error of the trial court in overruling his motion for a new trial. In support of this motion he insists: (1) That the verdict of the jury is contrary to law; (2) that the verdict of the jury is not sustained by sufficient evidence; (3) that the court erred in admitting in evidence certain of the State's exhibits.
As to the third reason assigned in the motion for a new trial, it appears that the evidence introduced, and of which appellant complains, was not at that time relevant, but if, by the introduction of other evidence later it did become relevant, the error, if any, would not be available. While we cannot commend this practice, yet it is a question largely within the discretion of the trial court, and appellant's remedy, in case the exhibits introduced were not made competent by other evidence, was to move the court to strike them from the record and to withdraw them from the jury. Had the court overruled the motion, an exception should have been reserved, and this ruling brought into the record by assigning it as a reason for a new trial. Heilman v. Shanklin (1878), 60 Ind. 424, 450; Tinkle v. Wallace (1906), 167 Ind. 382, 390, 79 N.E. 355; Ross v. State (1907), 169 Ind. 388, 82 N.E. 781; Burns v. Harris (1879), 66 Ind. 536; Zook v. Simonson (1880), 72 Ind. 83, 87. This was not done, and therefore no reversible error in this respect is pointed out.
That portion of § 8351, supra, applicable to the questions presented reads as follows: "And any person who shall keep, run or operate a place where intoxicating liquors are sold, bartered or given away in violation of the laws of the state, or any person who shall be found in possession of such liquors for such purpose shall be deemed guilty of a misdemeanor * * *".
This court has often affirmed that it will not weigh the evidence in a case upon appeal, but will, when the evidence to support the verdict is challenged, consider such evidence only as tends to support the conclusion of the jury. Wilson v. State (1910), 175 Ind. 458, 477, 93 N.E. 609; Applegate v. State (1914), 182 Ind. 266, 106 N.E. 370. But there is another rule equally as well settled, holding that where there is no evidence to support a material fact necessary to support the verdict, this court will set aside a judgment based upon such verdict. Wright v. Bertiaux (1903), 161 Ind. 124, 129, 66 N.E. 900, and authorities cited; Gillett v. Citizens' Nat. Bank (1914), 56 Ind.App. 694, 702, 104 N.E. 775; Mesker v. Bishop (1914), 56 Ind.App. 455, 471, 103 N.E. 492, 105 N.E. 644. It must also be kept in mind that the statute (§ 8345 Burns 1914, Acts 1907 p. 27, 30, § 9) makes the keeping of intoxicating liquors in any room or building, or in any other place, prima facie evidence that such liquors are kept for sale, barter, or to be given away, except in specific cases mentioned by the statute.
The undisputed evidence shows that on April 25, 1916, and for years prior thereto, a lodge of Moose occupied the third floor of a certain building in the city of Princeton Indiana. In connection with the order is a Moose Club, composed of members of the order; that it was the custom of the members of the order or club to hold, at times to be selected by them, what were known as social sessions, upon which occasions soft drinks, beer, eatables and cigars were served. These sessions were under the charge and direction of a committee selected or appointed by the membership present at a prior meeting. The personnel of this committee thus selected changed with each social session, and it had full charge of all arrangements and all purchases, including what was served at the banquet of which the particular committee had supervision. At no time was appellant on any one of these committees, nor did he have charge, or control, of the purchases made for these social sessions. The fund or money out of which the expenses of these banquets and social sessions were paid was contributed or donated by voluntary contributions of the members participating, and not one cent on that account was taken from the exchequer of the lodge or club. At the time the lodge had 125 members, and the beer was ordered from the Cook Brewing Company, of Evansville, by one of the members of the committee, and the money to pay for it was sent by the committee to the company in Evansville. There is no evidence that beer was ever purchased by...
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