Gillenwater v. State
| Decision Date | 15 May 1925 |
| Docket Number | 24,488 |
| Citation | 147 N.E. 714,196 Ind. 556 |
| Parties | Gillenwater v. State of Indiana |
| Court | Indiana Supreme Court |
Rehearing Denied October 13, 1925.
1. INTOXICATING LIQUORS.---Proof of allegation in affidavit that parties to whom liquor was sold were unknown to affiant unnecessary in absence of evidence to contrary.---Where the defendant was charged with selling intoxicating liquor to parties unknown to the person making the affidavit, in the absence of any evidence tending to show that the maker of the affidavit knew the person to whom the liquor was sold, as charged therein, the State was not required to prove that he did know it. p. 559.
2. CRIMINAL LAW.---Where the affidavit charging offense alleges that certain persons or facts were unknown, not necessary to prove allegation in absence of evidence to contrary.---Where the affidavit charging the offense contains the statement that certain persons or facts were unknown, it is not necessary for the State to prove the allegation in the absence of evidence tending to show that the person who made the affidavit really knew the persons or facts. p. 559.
3. INTOXICATING LIQUORS.---Evidence held sufficient to sustain conviction for selling intoxicating liquor.---Evidence held sufficient to support inference which the jury drew that defendant was guilty of selling intoxicating liquor. p. 559.
4. CRIMINAL LAW.---Only objections made in trial court are available on appeal.---On appeal from a criminal prosecution only those objections which were made in the trial court are available as cause for reversing the judgment, and not other objections neither presented to nor passed upon by that court. p. 560.
5. CRIMINAL LAW.---Admission of evidence in support of count on which defendant was found not guilty not prejudicial.---The admission of evidence in support of a count of the affidavit on which the defendant was found not guilty could not have prejudiced the defendant. p. 560.
6. CRIMINAL LAW.---Prosecution by affidavit containing several counts, finding of guilty as to one count equivalent to acquittal on other counts.---In a prosecution by affidavit consisting of two or more counts, a finding that defendant was guilty only as charged in one count is equivalent to a finding that he was not guilty of the offenses charged in the other counts. p. 561.
7. INTOXICATING LIQUORS.---Harmless error to refuse to give instruction that, at time of commission of offenses charged possession with intent to sell was not unlawful.---Where defendant was prosecuted by affidavit in three counts, the court's refusal to give instructions that, at the time of the commission of the offenses charged, the possession of intoxicating liquor with intent to sell was not unlawful, was harmless error where the defendant was found guilty only on the count charging a sale, as that was equivalent to a finding of not guilty on the other counts, there being no count charging possession with intent to sell. p. 561.
8. CRIMINAL LAW.---Court not required to give instructions not pertinent to the offense charged or the evidence.---The court is not required to give instructions which are not pertinent to the charge on which the defendant is on trial nor to the evidence introduced. p. 561.
9. CRIMINAL LAW.---Appellate tribunal cannot assume that defendant was harmed by refusal to give additional instructions on charge of which he was acquitted.---An appellate tribunal cannot presume that a convicted defendant was harmed by the court's refusal to give further instructions touching a charge of which he was acquitted. p. 561.
From Delaware Circuit Court; Clarence W. Dearth, Judge.
Sidney Gillenwater was convicted of selling intoxicating liquor, and he appeals.
Affirmed.
F. Clayton Mansfield, for appellant.
U. S. Lesh, Attorney-General, and O. S. Boling, for the State.
The affidavit under which appellant was prosecuted contained four counts, but the verdict found only that he was "guilty as charged in the first count," and fixed his punishment at a fine of $ 500 and imprisonment for six months. Judgment was rendered accordingly. Overruling the motion for a new trial is the only alleged error presented for consideration under which appellant has specified the refusal to give certain instructions, as requested, the admission of certain items of evidence, and the alleged insufficiency of the evidence to sustain the verdict. The first count of the affidavit alleged that on April 18, 1923, at the county of Delaware, State of Indiana, appellant did then and there unlawfully sell, barter, exchange, give away, furnish and dispose of intoxicating liquors to divers persons whose names were to the affiant unknown. There was evidence that on said date, at about 9 o'clock in the evening, appellant and three other men were in his rug cleaning establishment at Muncie, with the door locked and the blinds pulled down on the door and window; that the three men were white men; that this was in a room fifty feet long adjoining a small room used by appellant as a living apartment at the back end; that one of the men there was a local doctor and another was a "travelling salesman" who had come with him; that, when these two men arrived, they had found the door locked, but it was opened to admit them and was again locked; that four police officers, with a search warrant for his place, knocked at appellant's door, when he went to it, raised the blind and looked out, and, on seeing the officers, pulled the blind down and started toward the back part of the room; that the officers entered and followed close behind him, appellant's witnesses testifying that he opened the door for them, and the officers saying that they pushed it open; but there was no suggestion that their entry was unlawful; that, when the officers entered, appellant was going toward some whisky in the back part of the room "trying to get to those bottles"; that the three visitors were sitting within five or six feet of the stove, on the side away from the door; and still farther back in the...
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