Howard v. State

Decision Date02 June 1921
Docket NumberNo. 23854.,23854.
Citation131 N.E. 403,191 Ind. 232
PartiesHOWARD v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Criminal Court, Marion County; Walter Pritchard, Judge.

Beverly Howard was convicted under Burns' Ann. St. 1914, § 2466, of keeping a place for gaming, and he appeals. Affirmed.Robbins & Weyl, of Indianapolis, for appellant.

U. S. Lesh, Atty. Gen., and Dale F. Stansbury, of Indianapolis, for the State.

WILLOUGHBY, J.

The appellant was tried by jury in the criminal court of Marion county, Ind., upon an affidavit based upon section 2466, Burns' Stats. 1914, which reads as follows:

“Whoever keeps a building, room, arbor, garden, booth, shed, tenement or canal boat, wharf boat or other water craft, to be used or occupied for gaming, or knowingly permits the same to be used or occupied for gaming, or whoever, being the owner of any building, room, arbor, garden, booth, shed, tenement or canal boat, wharf boat or other water craft, rents the same to be used or occupied for gaming, shall, on conviction, be fined not less than ten dollars nor more than five hundred dollars, to which may be added imprisonment in the county jail or workhouse not less than ten days nor more than six months.”

To the affidavit filed against him the appellant entered a plea of not guilty, and upon the trial of the issue thus made, the jury rendered a verdict of guilty, as charged in the affidavit, and that he be fined $10 and imprisoned on the State Farm for a period of 30 days. Judgment was rendered on this verdict, and from such judgment appellant appeals and assigns as error that the trial court erred in overruling his motion for a new trial.

[1] In appellant's motion for a new trial he alleges that the court erred in giving certain instructions to the jury and refusing to give certain instructions tendered by appellant and requested to be given, but in appellant's brief, under the heading of Propositions, Points and Authorities,” there is no discussion either of alleged error in giving instructions or in refusing to give instructions. Any question which the appellant fails to support by points and authorities in his brief is waived. Vandalia R. R. Co. v. Mizer, 184 Ind. 680, 112 N. E. 522;Chicago R. Co. v. Ader, 184 Ind. 235, 110 N. E. 67;Quarries Co. v. Farmer, 184 Ind. 411, 110 N. E. 549;McMurran v. Hannum, 185 Ind. 326, 113 N. E. 238;Powell v. Jackson, 60 Ind. App. 597, 111 N. E. 208.

The only questions presented in appellant's brief are the sufficiency of the evidence and alleged error in admitting certain exhibits that were offered by the state and admitted in evidence. No objection is made by appellant to the sufficiency of the affidavit or to the form thereof, but in discussing the sufficiency of the evidence to sustain the verdict appellant insists that the affidavit charges two separate offenses, and that in order to convict it was necessary for the state to prove beyond a reasonable doubt that the defendant was guilty of both of the offenses.

[2][3] The charging part of the affidavit upon which the appellant was tried is as follows, to wit:

“That Beverly Howard, late of said city, county and state, on or about July 30, 1919, at and in the city, county and state aforesaid, did then and there unlawfully keep a certain building, to wit, 1118 East 16th street, there situate to be used and occupied for gaming and then and there unlawfully and knowingly permitted William Hall and others unknown to play at certain games for money and other articles of value.”

In Davis v. State, 100 Ind. 154, the court in passing on a motion to quash an indictment in substantially the same form as the indictment in this case, and based upon a similar statute, said:

“The purpose of the statute is to suppress gambling houses. If a person keeps a house to be used for gaming, he violates the statute, and may be convicted. If a person knowingly permits his house to be occupied or used for gaming, he, that far, makes it a gambling house, violates the statute and may be convicted. In this sense, the offenses are separate, and may be separately prosecuted. And yet, in another sense, the offense constitutes the one offense of violating the statute against gambling houses. And in this sense, as was said in *** Sowle v. State , the offense of permitting the gambling is merged in the offense of keeping a gambling house.”

In the same case, Davis v. State, supra, the court in quoting from Byrne v. State, 12 Wis. 525, says:

“The rule is well settled that, where a statute makes either of two or more distinct acts connected with the same general offense, and subject to the same measure and kind of punishment, indictable separately as distinct crimes when each shall have been committed by different persons or at different times, they may, when committed by the same person at the same time, be coupled in one count, as constituting altogether but one offense. In such cases, the several acts are considered as so many steps or stages in the same affair, and the offender may be indicted as for one combined act in violation of law; and proof of either of the acts mentioned in the statute and set forth in the indictment will sustain a conviction.”

A statute often makes punishable the doing of one thing or another, or another sometimes thus specifying a considerable number of things. Then, by proper and ordinary construction a person who in one transaction does all, violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Thereforethe indictment on such a statute may allege, in a single count, that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction “and” where the statute has “or” and it will not be double, and it will be established at the trial by proof of any one of them. Bishop's New Criminal Procedure, vol. 1, § 436.

In the instant case we hold that the offense of permitting gambling is merged in the offense of keeping a gambling house, and that the allegation in the affidavit that the defendant “unlawfully and knowingly permitted William Hall and others unknown to play at certain games for money and other articles of value” is surplusage and need not be proved to sustain a conviction. Dormer v. State, 2 Ind. 308;State v. Pancake, 74 Ind. 15.

[4] The appellant, quoting from Hamilton v. State, 142 Ind. 276, 41 N. E. 588, says:

“Where the evidence leaves standing some reasonable hypothesis of innocence there can be no conviction, and when the record discloses that fact to the appellate tribunal, a judgment of conviction cannot be affirmed.”

Hamilton v. State, supra, has been overruled by Lee v. State, 156 Ind. 541, 60 N. E. 299.

In Lee v. State, supra, it is held that where the circumstances are of such a character that the jury might have reasonably drawn an inference of guilt of the accused, the question of guilt becomes one of fact for the determination of the jury and trial court and is not open to review on appeal. Where the circumstantial evidence in a case is of such a character that two conflicting inferences may be reasonably drawn therefrom, one favorable to or tending to prove the guilt of the accused, and the other favorable to his innocence, then, under such circumstances, it is not within the province of the Supreme Court to determine which inference ought to have controlled the jury.

In Deal v. State, 140 Ind. 354, 39 N. E. 930, it is held that the jurisdiction of the Supreme Court on an appeal is limited to errors of law only, and it has no jurisdiction to pass upon errors of fact; the correction of errors of fact into which a jury may fall belongs exclusively to the trial court. The Supreme Court cannot retry questions of fact.

[5][6] If there be no evidence to support the verdict or finding, or if there be no evidence to support any fact essential to the support of the verdict or finding, such verdict or finding is an error of law which may be reviewed or corrected on appeal. If the jury find against the clear preponderance of the evidence, even in a case of conflict, that constitutes an error of fact, and not of law; and it is the duty of the trial court to correct such error by granting a new trial on the ground that the verdict is not sustained by sufficient evidence. In such a case the Supreme Court has no power to review such acts. The rule that this court will not weigh the evidence applies whether the same is direct, circumstantial, or both. McCaughey v. State, 156 Ind. 41, 59 N. E. 169;American Varnish Co. v. Reed, 154 Ind. 88, 55 N. E. 224. In considering whether the evidence is sufficient to sustain a verdict, only that evidence which was in favor of the prevailing party is considered. In this case the state is the prevailing party, and in determining whether the evidence is sufficient to sustain the verdict this court will consider only the evidence most favorable to the state, with the inferences and conclusions to be drawn therefrom, and will not consider any evidence which contradicts this evidence of the state.

[7] Edwin C. Ball, whose name is attached to the affidavit upon which this prosecution is based, testified substantially as follows:

“I am a member of the police force of the city of Indianapolis. On the 27th day of July, 1919, in the morning I went to the corner of Sixteenth and Alvord streets to the dry beer parlor known as 1118 East Sixteenth street, in the city of Indianapolis. Sergeant Russell, Patrolmen Evert, Claud White, and Walters went with me. We stopped at the back door and found it locked and later found it was barred. We stayed there for three or four minutes, listening, and heard the clinking of money and heard the dice being shaken and rolled. Heard a man say, ‘Shoot a dollar,’ and another man say, ‘As dollar it comes,’ and another man say, ‘A dollar it don't come.’ I had Claud White lead off at a run from the north end of the building, which is the rear, to the door that faces south....

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10 cases
  • Kestler v. State
    • United States
    • Indiana Supreme Court
    • April 6, 1949
    ... ... thereof, this constitutes an error of fact and not of law, ... and it is the duty of the trial court to correct such error ... by granting a new trial. The rule that this court will not ... weigh the evidence applies whether it is direct or ... circumstantial. Howard v. State, 1921, 191 Ind. 232, ... 131 N.E. 403. It is only where there is no evidence from ... which the trial judge or jury, as the case may be, may ... reasonably have drawn an inference of guilt that the ... [85 N.E.2d 78] ... decision or verdict will be disturbed on appeal ... ...
  • Beeler v. State
    • United States
    • Indiana Supreme Court
    • April 7, 1952
    ...and, when such grounds are stated, the implication is that there are not others, or, if others, that they are waived. Howard v. State (1921) 191 Ind. 232, 242, 131 N.E. 403; Bass v. State (1894) 136 Ind. 165, 171 N.E. 124. If the evidence is received over such objection, an appellant cannot......
  • Swanson v. State
    • United States
    • Indiana Supreme Court
    • January 26, 1944
    ...127, 47 N.E. 465. Here both miscarriage and death are pleaded in the conjunctive. Only one of the two need be proved. Howard v. State, 1921, 191 Ind. 232, 131 N.E. 403; Cooprider v. State, 1941, 218 Ind. 122, 31 53, 132 A.L.R. 553. The words 'then and there' place the miscarriage in Allen C......
  • Short v. State
    • United States
    • Indiana Supreme Court
    • May 29, 1968
    ...when such grounds are stated, the implication is that there are not others, or, if others, that they are waived. Howard v. State (1921), 191 Ind. 232, 242, 131 N.E. 403; Bass v. State (1894), 136 Ind. 165, 36 N.E. 124. If the evidence is received over such objection, an appellant cannot, in......
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