Hiner v. State

• Decision Date: 18 April 1929
• Docket Number: No. 13679.,13679.
• Parties: HINER v. STATE.
• Court: Indiana Appellate Court

89 Ind.App. 152

166 N.E. 20

HINER

v.STATE.

No. 13679.

Appellate Court of Indiana, in Banc.

April 18, 1929.

Appeal from Criminal Court, Marion County; James A. Collins, Judge.

Byron Hiner was convicted of possession and sale of intoxicating liquor, and he appeals. Affirmed.

Ira M. Holmes, of Indianapolis, for appellant.

Arthur L. Gilliom, Atty. Gen., and Bernard A. Keltner, Deputy Atty. Gen., for the State.

REMY, J.

Appellant was charged by affidavit filed in municipal court of Marion county with the possession and sale of intoxicating liquor, in violation of section 4 of the act of 1925 (Acts 1925, p. 144, c. 48; section 2717, Burns' 1926). Trial in municipal court resulted in a conviction, from which an appeal to Marion criminal court was prosecuted. In the latter court, appellant was again convicted. Sufficiency of the evidence to sustain decision is the only question presented to this court.

[1][2] In determining, on appeal in a criminal case, whether the evidence is sufficient to sustain the finding of guilty, only the evidence favorable to the state is considered, and, if there is competent evidence to sustain the finding of the trial court, the judgment must be affirmed. McQueary v. State (1928) 199 Ind. 700, 160 N. E. 291;Gmil v. State (1929 Ind. App.) 165 N. E. 695.

[3][4] On the trial, the evidence consisted of the testimony of but two witnesses, the prosecuting witness and appellant, who testified in his own behalf. The prosecuting witness testified that in company with another he went to the residence of appellant, and, when appellant came to the door in response to call of witness, witness asked appellant for some liquor. Whereupon appellant brought out one half pint bottle filled with whisky, which witness purchased of appellant, paying therefor the sum of 50 cents, and that the transaction occurred in Marion county, state of Indiana, September 19, 1927. Witness further testified that, when appellant appeared at the door of his residence, the man who had accompanied witness fled. The testimony of prosecuting witness, in so far as it relates to possession and sale of whisky, was contradicted by appellant as a witness in his own behalf; appellant giving his own explanation as to what took place at the time. It is evident that the trial court did not believe appellant's story. It is not the law that the uncorroborated testimony of one witness is insufficient to sustain a conviction of one charged with a criminal offense....