Hiner v. State
| Decision Date | 27 October 1925 |
| Docket Number | No. 24770.,24770. |
| Citation | 196 Ind. 594,149 N.E. 168 |
| Court | Indiana Supreme Court |
| Parties | HINER v. STATE. |
OPINION TEXT STARTS HERE
Appeal from Criminal Court, Marion County; James Collins, Judge.
Byron Hiner was convicted of unlawfully possessing a still and distilling apparatus for the manufacture of intoxicating liquor, and he appeals. Reversed with directions.Holmes & McCallister, of Indianapolis, for appellant.
U. S. Lesh, Atty. Gen., and Geo. A. Matlack, of Omaha, Neb., for the State.
Appellant was charged with unlawfully possessing a still and distilling apparatus for the manufacture of intoxicating liquor. Acts 1923, p. 107, c. 33. 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 100-gallon still which was warm, nine 50-gallon barrels, two force pumps, hose, acetylene tanks, 275 gallons of mash, and a 5-gallon can which contained 3 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 any one, occupied the house, except that in reply to questions by the court asked of one of the officers, he testified:
[1] 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 in proof of whether or not appellant owned or rented or had the use of the second floor of the dwelling, from which it might have been inferred that he had been there and was in possession or control of the still and distilling apparatus. It was incumbent upon appellee to produce evidence that would naturally have been produced in an honest effort to support the charge in the indictment, and its nonproduction permits the inference that, if such evidence had been given, its tenor would have been unfavorable to appellee. The rule of the nonproduction of evidence naturally expected from witnesses within the power of the party to be produced even goes so far that the failure to produce available witnesses is taken as negativing the fact alleged. 1 Wigmore on Evidence (2d Ed.) note to section 285.
[2] Although it is not admitted by the appellee it is apparent that each material element of the offense charged is not proved by testimonial evidence, and it remains to be found whether the circumstantial...
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