Hiner v. State

• Decision Date: 27 October 1925
• Docket Number: 24,770
• Citation: 149 N.E. 168,196 Ind. 594
• Parties: Hiner v. State of Indiana
• Court: Indiana Supreme Court

149 N.E. 168

196 Ind. 594

Hiner v. State of Indiana

No. 24,770

Supreme Court of Indiana

October 27, 1925

1. CRIMINAL LAW.---Evidence withheld by the State authorizes inference that it would be unfavorable to prosecution.---Where pertinent evidence that could have been produced is not introduced by the State, the inference is authorized that if such evidence had been given, it would have been unfavorable to the prosecution. p. 596.

2. CRIMINAL LAW.---Fact may be established by inferences from other proved facts.---A fact may be established by inferences drawn from other proved facts. p. 597.

3. CRIMINAL LAW.---Weighing of evidence goes only to the truth or falsity of the evidence, and does not extend to calculation based on suspicions, possibilities or suppositions.---In a trial by the court, it is within the province of the court to weigh the evidence, but such mental process goes only to the truth or falsity of the evidence and does not extend to a calculation based on mere suspicions, possibilities or suppositions that might arise from the evidence. p. 598.

4. CRIMINAL LAW.---When prosecution rests wholly or partially on circumstantial evidence, circumstances proved must be consistent with each other, and, taken together, must point surely in the direction of guilt.---When a prosecution rests wholly or partially upon circumstantial evidence, the circumstances proved must be consistent with each other, and taken together, they must point surely and unerringly in the direction of guilt. p. 599.

5. INTOXICATING LIQUORS.---Evidence held not to sustain finding of guilt of possessing still and distilling apparatus for manufacture of intoxicating liquor.---Evidence held not to sustain court's finding that defendant was guilty of possessing a still and distilling apparatus for the manufacture of intoxicating liquor. p. 599.

6. CRIMINAL LAW.---Testimony giving statements of defendant's wife, in his absence, held inadmissible because hearsay.---In prosecution for having possession of a still and distilling apparatus for the manufacture of intoxicating liquor, testimony of a police officer of statements of defendant's wife, in his absence, in proof of fact necessary in the chain of circumstantial evidence to connect defendant with the premises where the articles were found, being hearsay, was inadmissible. p. 599.

From Marion Criminal Court (56,236); James A. Collins, Judge.

Byron Hiner was convicted of possessing a still and distilling apparatus for the manufacture of intoxicating liquor, and he appeals.

Reversed.

Holmes & McCallister, for appellant.

U. S Lesh, Attorney-General, and George A. Matlock, for the State.

OPINION

Travis, J.

Appellant was charged with unlawfully possessing a still and distilling apparatus for the manufacture of intoxicating liquor. (Acts 1923 p. 107.) The trial was before the court, which found appellant guilty of the charge. Motion for a new trial for the reasons that the finding of guilty is not sustained by sufficient evidence, and is contrary to law, and error in the admission of evidence, was overruled. Judgment upon the finding.

The evidence most favorable to the finding of guilty is, that a fire occurred December 29, 1923, on the second floor of the dwelling house at 1020 North Illinois street, Indianapolis, which was attended by the fire department. Before all the firemen had departed, some police officers arrived and made an investigation of the premises. As a result of this investigation, there were found by the police officers on the south side of the front room on the second floor of the house, a one hundred-gallon still, which was warm, nine fifty-gallon barrels, two force pumps, hose, acetylene tanks, two hundred and seventy-five gallons of mash, and a five-gallon can which contained three gallons of whisky. The officers also testified that there was no furniture on the second floor of the house, upon which the still and other articles were found, other than the frame of an old bed. One of the officers testified that appellant and his wife lived in the house during the month of December, and that the wife, at the house, in the absence of appellant, told him that she and appellant lived there, which hearsay evidence was admitted over the objection of appellant. All the officers testified that they had not seen defendant there. At the time of the arrival of the policemen, appellant's wife was there and was placed under arrest. Appellant was not arrested until the following month of March. In behalf of the defendant, his wife testified that she rented four rooms on the first floor of this house from a Mr. Brown, who, with his wife, lived on the second floor of the house. Other than the evidence of the wife of appellant concerning her interest in the dwelling house, there is no evidence to show by whom the property was owned, whether it had been rented or not, and if so by whom, or who, if anyone, occupied the house, except that in reply to questions by the court asked of one of the officers, he testified: "I don't know in whose name it was rented. Here are the receipts and bills."

From the evidence given in behalf of appellee, it is apparent that it was in the mouth of appellee to give testimonial evidence of the name of the tenant of the dwelling house and the amount of the rent, for the officer testified that he held the receipts. It was within the power of appellee to bring evidence as to the ownership of the premises, if not testimonial evidence, then record evidence. Upon failure of any witness for appellee to state that he had ever seen appellant on the premises, appellee might have brought such testimonial evidence...