Eaton v. State, 23145.
| Docket Nº | No. 23145. |
| Citation | 186 Ind. 167, 115 N.E. 329 |
| Case Date | March 07, 1917 |
| Court | Supreme Court of Indiana |
EATON
v.
STATE.
No. 23145.
Supreme Court of Indiana.
March 7, 1917.
Appeal from Circuit Court, Gibson County; Jno. K. Chappell, Judge.
John H. Eaton was convicted of keeping, running, and operating a place where intoxicating liquors were sold, bartered, and given away in violation of law, and he appeals. Reversed with instructions.
Hovey C. Kirk and Morton C. Embree, both of Princeton, for appellant. Evan B. Stotsenberg, Atty. Gen., and Wilbur T. Gruber, Asst. Atty. Gen., for the State.
MYERS, J.
Appellant was charged by affidavit with keeping a place where intoxicating liquors were sold in violation of law, and having such liquors in his possession for such purpose. The charge was presented under section 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.
[1][2] 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, 60 Ind. 424, 450;Tinkle v. Wallace, 167 Ind. 382, 390, 79 N. E. 355;Ross v. State, 169 Ind. 388, 82 N. E. 781;Burns v. Harris, 66 Ind. 536;Zook v. Simonson, 72 Ind. 83, 87. This was not done, and therefore no reversible error in this respect is pointed out.
That portion of section 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. ***”
[3][4] This court has often affirmed that it will not weigh the evidence in a case upon appeal, but will, when the evidence to support
[115 N.E. 330]
the verdict is challenged, consider such evidence only as tends to support the conclusion of the jury. Wilson v. State, 175 Ind. 458, 477, 93 N. E. 609;Applegate v. State, 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, 161 Ind. 124, 129, 66 N. E. 900, and authorities cited. Gillett v. Citizens' National Bank, 56 Ind. App. 694, 702, 104 N. E. 775;Mesker v. Bishop, 56 Ind. App. 455, 471, 103 N. E. 492, 105 N. E. 644. It must also be kept in mind that the statute (section 8345, Burns 1914; Acts 1907, p. 27, § 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...
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...585; Deal v. State, 1894, 140 Ind. 354, 359, 39 N.E. 930; Sullivan v. State, 1928, 200 Ind. 43, 47, 161 N.E. 265; Eaton v. State, 1917, 186 Ind. 167, 169, 115 N.E. 329; Rhoades v. State, Ind.Sup.1949, 84 N.E.2d Giving full faith and credit to all the evidence in the case it does no more tha......
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