Hiner v. State, No. 24770.

Docket NºNo. 24770.
Citation196 Ind. 594, 149 N.E. 168
Case DateOctober 27, 1925
CourtSupreme Court of Indiana

196 Ind. 594
149 N.E. 168

HINER
v.
STATE.

No. 24770.

Supreme Court of Indiana.

Oct. 27, 1925.


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.

[149 N.E. 169]


Holmes & McCallister, of Indianapolis, for appellant.

U. S. Lesh, Atty. Gen., and Geo. A. Matlack, of Omaha, Neb., for the State.


TRAVIS, J.

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: “I don't know in whose name it was rented. Here are the receipts and bills.”

[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...

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24 practice notes
  • Baker v. State, No. 29297
    • United States
    • Indiana Supreme Court of Indiana
    • December 13, 1956
    ...v. State, 1952, 230 Ind. 557, 104 N.E.2d 729; [236 Ind. 60] Todd v. State, 1951, 230 Ind. 85, 90, 101 N.E.2d 922; Hiner v. State, 1925, 196 Ind. 594, 149 N.E. 168. Mere opportunity to commit crime is insufficient to sustain a conviction. Osbon v. State, 1938, 213 Ind. 413, 424, 13 N.E.2d 22......
  • Kestler v. State, No. 28346.
    • United States
    • Indiana Supreme Court of Indiana
    • April 6, 1949
    ...95;Faulkenberg v. State, [1926], 197 Ind. 491, 151 N.E. 382;Henry v. State [1925], 196 Ind. 14, 20, 146 N.E. 822;Hiner v. State [1925], 196 Ind. 594, 149 N.E. 168;Falk v. State [1914], 182 Ind. 317, 106 N.E. 354;Cavender v. State, [1890], 126 Ind. 47, 25 N.E. 875.’ Dowty v. State, 1932, 203......
  • Yessen v. State, No. 28601
    • United States
    • Indiana Supreme Court of Indiana
    • May 24, 1950
    ...669; Sullivan v. State, 1928, 200 Ind. 43, 47, 161 N.E. 265; Osbon v. State, 1938, 213 Ind. 413, 424, 13 N.E.2d 223; Hiner v. State, 1925, 196 Ind. 594, 598, 149 N.E. 168; Slater v. State, 1947, 224 Ind. 627, 636, 70 N.E.2d 425; 23 C.J.S., Criminal Law, § 910 page We are mindful of the rule......
  • Mann v. Anderson, No. 18821.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 13, 1971
    ...plaintiff did not call as witnesses his mother, his stepfather or the treating physician. Defendant cites two cases, Hiner v. Indiana, 196 Ind. 594, 149 N.E. 168 (1925), and Neidhoefer v. Automobile Ins. Co., 182 F.2d 269 (7th Cir. 1950). Hiner was a criminal case in which the prosecution f......
  • Request a trial to view additional results
24 cases
  • Baker v. State, No. 29297
    • United States
    • Indiana Supreme Court of Indiana
    • December 13, 1956
    ...v. State, 1952, 230 Ind. 557, 104 N.E.2d 729; [236 Ind. 60] Todd v. State, 1951, 230 Ind. 85, 90, 101 N.E.2d 922; Hiner v. State, 1925, 196 Ind. 594, 149 N.E. 168. Mere opportunity to commit crime is insufficient to sustain a conviction. Osbon v. State, 1938, 213 Ind. 413, 424, 13 N.E.2d 22......
  • Kestler v. State, No. 28346.
    • United States
    • Indiana Supreme Court of Indiana
    • April 6, 1949
    ...95;Faulkenberg v. State, [1926], 197 Ind. 491, 151 N.E. 382;Henry v. State [1925], 196 Ind. 14, 20, 146 N.E. 822;Hiner v. State [1925], 196 Ind. 594, 149 N.E. 168;Falk v. State [1914], 182 Ind. 317, 106 N.E. 354;Cavender v. State, [1890], 126 Ind. 47, 25 N.E. 875.’ Dowty v. State, 1932, 203......
  • Yessen v. State, No. 28601
    • United States
    • Indiana Supreme Court of Indiana
    • May 24, 1950
    ...669; Sullivan v. State, 1928, 200 Ind. 43, 47, 161 N.E. 265; Osbon v. State, 1938, 213 Ind. 413, 424, 13 N.E.2d 223; Hiner v. State, 1925, 196 Ind. 594, 598, 149 N.E. 168; Slater v. State, 1947, 224 Ind. 627, 636, 70 N.E.2d 425; 23 C.J.S., Criminal Law, § 910 page We are mindful of the rule......
  • Mann v. Anderson, No. 18821.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 13, 1971
    ...plaintiff did not call as witnesses his mother, his stepfather or the treating physician. Defendant cites two cases, Hiner v. Indiana, 196 Ind. 594, 149 N.E. 168 (1925), and Neidhoefer v. Automobile Ins. Co., 182 F.2d 269 (7th Cir. 1950). Hiner was a criminal case in which the prosecution f......
  • Request a trial to view additional results

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