Hiatt v. State

• Decision Date: 13 May 1920
• Docket Number: 23,619
• Parties: Hiatt v. State of Indiana
• Court: Indiana Supreme Court

127 N.E. 277

189 Ind. 524

Hiatt v. State of Indiana

No. 23,619

Supreme Court of Indiana

May 13, 1920

Rehearing Denied October 15, 1920.

From Noble Circuit Court; Luke H. Wrigley, Judge.

Prosecution by the State of Indiana against Alvin Hiatt. From a judgment of conviction, the defendant appeals.

Affirmed.

W. W Sharpless, Henry C. Springer and Finley A. Nash, for appellant.

Ele Stansbury, Attorney-General, A. B. Cronk, Dale F. Stansbury and Aladar Hamborszky, for appellee.

OPINION

Myers, J.

In the Noble Circuit Court appellant was indicted, tried by a jury, and convicted of selling intoxicating liquor, to wit, one pint of whisky, in violation of § 4, Acts 1917 p. 15, § 8356a et seq. Burns' Supp. 1918. He was sentenced to pay a fine of $ 100 and to imprisonment at the Indiana State Farm for a period of thirty days. His motion for a new trial was overruled, and this ruling is here assigned as error.

In this court, as one of the causes in support of his motion for a new trial, appellant insists that the court erred in giving to the jury upon its own motion instruction No. 3. The instruction is of considerable length and it will only be necessary for us to refer to the claimed erroneous parts of it.

As to the first objection the instruction reads as follows: "In reference to the substance or thing sold, if there was a sale, being whiskey, it is not necessary for the state to prove that it was whiskey alone. If the compound or liquid that was sold by Hiatt to the prosecuting witness, if there was a sale, and that is for you to say, contained a sufficient portion of whiskey to constitute it intoxicating liquor, or an intoxicating beverage or compound, the burden resting on the state as to that would be satisfied, in other words, the defendant is not entitled to an acquittal simply because of the fact, if it be a fact, that there was other ingredients in the liquor or compound than whiskey, if in fact there was sufficient whiskey therein to constitute it intoxicating liquor. Neither need the state prove the exact amount of liquor sold, if any was sold."

Appellant insists that it was error for the court to leave to the jury the question of whether or not the compound alleged to have been sold was intoxicating liquor. Under § 4, supra, it is unlawful to sell intoxicating liquor. Section 2 of this same act defines intoxicating liquor "to mean all malt, vinous, or spirituous liquor, containing so much as one-half of one per cent. of alcohol by volume, or any other intoxicating drink, mixture or preparation of like nature; and all mixtures or preparations containing such intoxicating liquor, whether patented or not, reasonably likely or intended to be used as a beverage, and all other beverages containing so much as one-half (1/2) of 1 per cent. of alcohol by volume."

Alcohol is the intoxicating element in intoxicating liquor, so that, in order to make a sale of liquor an offense in this state, it must contain more than one-half of one per cent. of alcohol by volume. The offense charged was the sale of intoxicating liquor particularly distinguished as whisky. The courts of this state will take judicial notice that whisky is intoxicating liquor. Schlicht v. State (1877), 56 Ind. 173; Eagan v. State (1876), 53 Ind. 162; State v. Barr (1910), 48 L. R. A. (N. S.) 302, note. Consequently proof of a sale of whisky, or proof that the liquid sold was intoxicating, or that it contained more than one-half of one per cent. of alcohol, would be sufficient to sustain the charge.

Courts will not take judicial notice from the fact alone that whisky in some amount is in a certain compound, that such compound or liquid is necessarily intoxicating, or that it contains more than one-half of one per cent. of alcohol by volume. Our statute does not entirely forbid the sale of the intoxicating element which, with water and other elements, compose whisky. So in this case the fact as to whether or not the liquid in question was intoxicating was a question for the jury, to be determined from the evidence as any other essential fact in the case.

The evidence has been certified to this court, and from that part of it most favorable to the state it appears that the liquid said to have been sold did not look like whisky, but it tasted like diluted whisky, or had whisky in it. It was not pure whisky. "Don't know that it was whisky only from what the defendant said at first, but immediately thereafter he gave it another name saying that it was medicine which he used in his family."

Both the prosecuting witness and the defendant were farmers, lived a short distance apart, were brothers-in-law, and at the time of the trial were hostile to each other.

With this evidence and some other minor circumstances before us we cannot say the instruction was wholly aside from the evidence, nor that the jury was not given to understand that it was its duty to find that the subject of the sale was intoxicating liquor before they would be authorized to convict the defendant. However, we would suggest that the jury should have been given the statutory definition of intoxicating liquor. That was not done, nor was such an instruction requested.

In addition the instruction told the jury that: "In determining as to the guilt or innocence of the defendant, you have the right to take into account and consideration the fact as to whether or not the claim made by the defendant is consistent; you have the right to take into consideration the question as to whether the claim made by the defendant is credible or not. In other words, in weighing the question of guilt, you have the right to take into account, if such be the fact, that the defense set up, is credible, or is not credible, but whether it is or not is for you to determine and I do not desire to indicate any opinion whatever thereon, but when you have carefully considered and canvassed the evidence, the question for you to determine is, whether the offense averred in the indictment is proved beyond a reasonable doubt and if it is, you should convict the defendant and that you should do, without reference to what the penalty or consequence to the defendant may be, but if on the other hand you find that the evidence is not sufficient to convict the defendant you should just as unhesitatingly acquit him."

It is claimed that the language of the instruction with reference to the credibility of the defense was erroneous, for the reason: First, that it tended to cast a suspicion on a legitimate defense; and, second, that it placed the burden upon the defendant to establish a credible defense.

The defense was no sale and nonintoxicating liquor.

In this state...