Hubbard v. State , 24576.

• Decision Date: 24 April 1925
• Docket Number: No. 24576.,24576.
• Parties: HUBBARD v. STATE.
• Court: Indiana Supreme Court

196 Ind. 137

147 N.E. 323

HUBBARD

v.STATE.

No. 24576.

Supreme Court of Indiana.

April 24, 1925.

Appeal from Circuit Court, Franklin County; E. Ralph Himelick, Judge.

Milford P. Hubbard was convicted of violation of the prohibition law, and he appeals. Reversed, with directions.Estel G. Bielby, of Lawrenceburg, for appellant.

U. S. Lesh, Atty. Gen., for the State.

PER CURIAM.

Appellant was convicted of an alleged violation of the prohibition law. Overruling his motion for a new trial is assigned as error. The affidavit on which the prosecution was based alleged that on May 14, 1923, at Franklin county, Ind., appellant “did then and there unlawfully keep and have in his possession intoxicating liquor with intent then and there to give away, furnish, and otherwise dispose of said intoxicating liquor to E. K. and *** did unlawfully give away, furnish, and otherwise dispose of intoxicating liquor to E. K., contrary,” etc. The undisputed evidence was that four persons went up into a darkened room, on the second floor of an office building, and looking from its windows watched appellant in conference with E. K. in his law office directly across the street; that there were curtains of some white material (not lace) at appellant's windows, but, when the lights were turned on in his room and it was dark outside, the watchers could see appellant and E. K.; that appellant took a bottle out of a drawer in his desk, poured out some liquid and drank it; and that he offered some to his companion. But the evidence was in conflict on the question whether or not E. K. drank any of the liquid. Two of the witnesses for the state testified only to seeing appellant drink and then offer some to his companion, but did not say that the latter accepted and drank it; and E. K. and appellant both testified that a small quantity was poured out for his inspection, and that, after having smelled of it, he poured it into the spittoon, and that he did not drink any; while two other witnesses for the state testified that they saw E. K. refuse once, but that a few minutes before such refusal they had seen him drink from a glass into which appellant had poured something from the bottle. A search warrant being obtained, a bottle was found in appellant's desk containing what witnesses said was “moonshine whisky,” and this bottle and its contents were introduced in evidence. And appellant admitted on the witness stand that his bottle contained “moonshine.”

The giving of each of certain instructions and the refusal to give each of certain others is complained of. As applied to the foregoing evidence the trial court gave an instruction that set out the language of the affidavit, quoted above, including the charge that appellant “kept and had in his possession intoxicating liquor with intent to give away,” etc., and told the jury they might take the affidavit to the jury room. And it also gave one which recited the statute, 200 words long, on which the prosecution was based, beginning with the words (our italics):

“It shall be unlawful for any person to manufacture, transport, possess, sell, barter, exchange, give away, furnish or otherwise dispose of any intoxicating liquor, except as in this act provided.” Section 1, c. 23, Acts 1923, p. 70.

And gave another which contained the following language:

“The questions for you to determine are as follows: Did the defendant, Milford P. Hubbard, have possession of this liquor as alleged in the affidavit? And did he give to E. K. or otherwise dispose of to E. K. any such liquor?”

And notwithstanding the defendant duly and properly requested that an instruction (No. 2) be given which set out that part of the statute declaring it unlawful to manufacture, transport, possess, sell, barter, exchange, give away, furnish, or otherwise dispose of intoxicating liquor, and continued:

“I further instruct you that said act does not make the mere possession of intoxicating liquor unlawful; and, if you find from the evidence introduced in this cause that on the 14th day of May, 1923, the defendant did have in his possession intoxicating liquor, and you do find from the evidence that he drank some of the same, and you further find that he did not give any of said intoxicating liquor to E. K., as alleged in the affidavit herein, then I instruct you that your verdict should be for the defendant.”

[1] The court refused to give such instruction. Mere possession of intoxicating liquor, whether with or without an intent to give it away, was not a public offense at any time in 1923, after the statute under which appellant was prosecuted took effect on February 26th. Smith v. State (Ind. Sup.) 144 N. E. 471. But the instructions given were so framed as to carry an intimation that proof of such possession with the intent charged would justify a finding of guilty, and no instruction expressly declaring the contrary was given.

[2][3][4] A number of the instructions given clearly intimated that the appellant might be found guilty if the jury found that he “furnished” intoxicating liquor to E. K., while at the same time the court refused to instruct that the verdict should be for the defendant if the jury found that he “did not give any intoxicating liquor to E. K.” The expression to “furnish” intoxicating liquor to another, as used in the statute, means to supply it for his use. Banks v. State, 188 Ind. 353, 356, 123 N. E. 691. And the only evidence which tended to prove that appellant was guilty of that offense was testimony that he gave E. K. a drink of liquor which he poured out into a glass and E. K. drank. If the jury believed from the evidence that appellant did not give any intoxicating liquor to E. K., but that he merely poured out a little liquor in a glass for inspection, to show its bad quality, and that it was then thrown into a cuspidor, as the witnesses for the defense testified, they were not justified in returning a verdict of guilty on any theory that liquor was “otherwise furnished.” In view of the state of the evidence and the other instructions given, it was error to refuse to give appellant's requested instruction No. 2.

[5][6] The court also gave an instruction (No. 4...