Hudson v. State
| Decision Date | 16 November 1926 |
| Docket Number | No. 24575.,24575. |
| Citation | 154 N.E. 7,198 Ind. 422 |
| Court | Indiana Supreme Court |
| Parties | HUDSON v. STATE. |
OPINION TEXT STARTS HERE
Appeal from Criminal Court, Marion County; James A. Collins, Judge.
Lithe Hudson was convicted of manufacturing, transporting, possessing, and possessing with intent to sell, intoxicating liquor, and she appeals. Reversed.Robinson, Symmes & Melson, of Indianapolis, for appellant.
U. S. Lesh, Atty. Gen., and Ethan A. Miles, of Indianapolis, for the State.
Appellant was charged, by count No. 2 of an affidavit, with having, on May 19, 1923, unlawfully manufactured, transported, possessed, and with possession of, intoxicating liquor, with intent to sell, barter, exchange, give away, furnish, and otherwise dispose of the same to persons to affiant unknown, contrary, etc. Acts 1923, p. 70, c. 23. The trial by the court resulted in a finding of guilty on count 2, which was followed by judgment of a fine and imprisonment.
Error is predicated upon the overruling of appellant's motion for a new trial, which alleged that the finding of the court was not sustained by sufficient evidence, and was contrary to law. It will be noted that the charge is for four separate violations of the statute: (1) Manufacture; (2) transportation; (3) possession; and (4) possession with intent to sell, etc.
[1][2] There is no evidence whatever of manufacture of liquor of any kind or description in the record. The mere possession of intoxicating liquor is not an offense under the statute upon which this action is founded (Acts 1923, c. 23, § 1; Crabbs v. State [1923] 193 Ind. 248, 139 N. E. 180;Powell v. State [1923] 193 Ind. 258, 139 N. E. 670); and it was not a criminal offense to possess or keep intoxicating liquor to sell, etc., under the law as it then existed (Acts 1923, c. 23, § 1, supra; Smith v. State [1924] 194 Ind. 686, 144 N. E. 471). By this process of elimination, the sole violation of law charged, which appellee claims is supported by the evidence, is that of transporting intoxicating liquor.
The police officers were the only witnesses who testified on behalf of the state, both of whom gave the same answers to similar questions which had any bearing upon transportation. Both officers went to the home of appellant on May 18, 1923, at No. 330 Osage street, in the city of Indianapolis, Marion county, Ind., and searched it. They found “one pint of white mule whisky in a trap under a bed off of middle room.” A roomer was sleeping in the room where the whisky was found. He told the officers that the whisky did not belong to him.
The only evidence in the case which relates to transporting liquor are the answers to three questions by the police officers: (1) “She said *** I put it in there last night”; (2) “she said somebody brought it there in a machine”; and (3) “she did not know who brought it there.”
[3] If this judgment is to be affirmed, the decision must rest upon inference from the evidence, and not by direct evidentiary facts. Following the rule in the recent case (Hammell v. State [Ind. Sup. 1926] 152 N. E. 161), a carrying of the liquor from room to room in the dwelling house, or from the house yard into the house, is not a transport of the liquor within the thus defined legal meaning of the statute.
[4] The sole question in the case is the proof of the transporting of the intoxicating liquor by inference of a fact based upon facts established by direct evidence. In order to sustain the finding in this case of transporting intoxicating liquor, the fact must be in evidence that such transporting was from off the premises to or upon the premises of appellant by her. In the case last above cited, it was held that the evidence was insufficient to sustain the verdict of guilty, where the transportation was from a shed or small building upon the premises into the house, and the intoxicating liquor deposited in the third story of the house.
[5] To sustain a conviction in the case at bar, there must be evidence of some quality sufficient to prove that appellant conveyed the liquor somewhere from off her premises to or on her premises. The best and only...
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