Howard v. State

Decision Date15 November 1923
Docket NumberNo. 24268.,24268.
Citation141 N.E. 341,193 Ind. 599
CourtIndiana Supreme Court


Appeal from Criminal Court, Marion County; F. A. Symmes, Judge pro tem.

Harry Howard was convicted of a violation of the Prohibition Law, and he appeals. Judgment reversed, with instructions to sustain defendant's motion for a new trial.Frank S. Roby, Albert Asche, and Ralph M. Spaan, all of Indianapolis, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward F. White, Deputy Atty. Gen., for the State.


Appellant was convicted in the court below of a violation of section 1, Acts 1921, p. 736 (section 8356d, Burns' Supp. 1921). The indictment, besides charging the offense, alleged that on November 16, 1920, appellant was convicted in the city court of a violation of chapter 4, Acts 1917, p. 15. The judgment was a fine of $200 and imprisonment in the Indiana State Farm for 60 days. His motion for a new trial was overruled, and this ruling is the only error assigned. In support of his motion his only insistence is that the finding of the court was not sustained by sufficient evidence and that it was contrary to law.

The undisputed and practically all of the evidence in this case, of which there is any, material to the issue, is covered by the following narration: On November 16, 1921, appellant was convicted in the city court of the city of Indianapolis “for violating the Prohibition Law.” On September 16, 1922, near 11 o'clock p. m., on the invitation of one Dan Vald, this appellant and a cousin of Vald accompanied the former in his automobile to the Mercantile Garage, 125 South Pennsylvania street. They left the car near the washstand in the garage, and on leaving, one Goldhagen, unknown to this appellant, came out of the garage office and spoke to Vald, who stopped and talked with him a few minutes. Goldhagen then asked, “Which way are you boys going?” and on being told, said he was going that way and invited them to ride with him. They accepted the invitation. Appellant was seated in the rear seat of an Ohio licensed Hudson automobile, which was driven by Goldhagen, who, it appears, owned the car and five or six gallons of whisky which was found in cartons on the floor “in the back of the automobile.” The personal appearance of Goldhagen and the appearance of the car-dirty and dusty -indicated travel of some considerable distance, while the appearance of the other parties in the car, as stated by the arresting officer, was wholly to the contrary; that is to say, they were clean, not dusty. They were all sober. The car in which appellant was riding was driven west from Pennsylvania street on Georgia to Illinois, and north on Illinois between Georgia and Maryland streets, where the car was stopped by an officer, and all of the parties, including appellant, were arrested. The arresting officer had no talk with appellant, but on searching the car and finding the whisky Goldhagen said that it belonged to him, and that he alone had brought it from Cincinnati on that day. Question by prosecutor, “What else was in the back end of that car besides whisky?” The officer answered, “A laprobe and an old coat or two.”

Upon this state of the evidence, the trial court found appellant guilty of the charge “did then and there unlawfully manufacture, transport and possess intoxicating liquor, and did then and there unlawfully keep and have in his possession intoxicating liquor with intent then and there to sell, barter, exchange, give away, furnish and otherwise dispose of the same to persons to the grand jurors unknown within the state.”

The Attorney General asserts that the evidence was circumstantial, and that the court was justified in finding appellant guilty solely upon the theory that it would be highly improbable that Goldhagen would take strangers into his car containing a quantity of whisky.

[1][2][3][4] While this court will indulge every reasonable inference which may be drawn from the evidence in support of the finding of the trial court, yet such inference must be drawn from premises established by proof; that is to say, where, as here, the state relies entirely upon circumstantial evidence, it must, by probative facts consistent with each other, establish the ultimate and essentia facts necessary to a conviction, or, in other words, the proved facts and circumstances must be such that the court or the jury trying the case may, by mental process and experience,reasoning from cause to effect, reasonably and naturally infer to a moral certainty the existence of the facts sought to be proved. However, in this jurisdiction an appellate tribunal is limited in its investigation to the question of whether or not...

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6 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 ... ...
  • Spratley v. Commonwealth
    • United States
    • Virginia Supreme Court
    • March 20, 1930
    ...100 Tex. Cr. R. 122, 272 S. W. 131; Murray v. State, 19 Ariz. 49, 165 P. 315; Stafford V. U. S. (C. C. A. Ky.) 300 F. 537; Howard v. State, 193 Ind. 599, 141 N. E. 341; Richardson v. State, 89 Tex, Cr. R. 17, 228 S. W. 1094; Walling v. State, 94 Tex. Cr. it. 147, 250 S. W. 167. To support h......
  • Spratley v. Commonwealth
    • United States
    • Virginia Supreme Court
    • March 20, 1930
    ... ... 443, at page 450; Wooden Commonwealth, 177 Va. 930, 86 S.E. 305, Ann. Cas. 1917D, 1032 Reynolds Commonwealth, 33 Gratt. (74 Va.) 834; Carey State, 194 Ind. 626, 144 N.E. 22; Reese State, 157 Ga. 766, 122 S.E. 195; Richardson State, 89 Tex.Cr.R. 17, 228 S.W. 1094 ...         3 Except in ... Howard Commonwealth, 138 Va. 835, 122 S.E. 112; Woytek State, 100 Tex.Cr.R. 122, 272 S.W. 131; Murray State, 19 Ariz. 49, 165 Pac. 315; Stafford U.S ... ...
  • Christen v. State, 28604
    • United States
    • Indiana Supreme Court
    • January 4, 1950
    ...1946, 224 Ind. 209, 214, 66 N.E.2d 69; Dowty v. State, 1932, 203 Ind. 228, 235, 179 N.E. 720, and cases cited; Howard v. State, 1923, 193 Ind. 599, 602-603, 141 N.E. 341. In the Dowty case, supra, Judge Myers, speaking for the court, used the following language upon this subject: '* * * Whe......
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