Kinley v. State, 25091.

• Decision Date: 05 January 1927
• Docket Number: No. 25091.,25091.
• Citation: 154 N.E. 667,198 Ind. 690
• Parties: KINLEY v. STATE.
• Court: Indiana Supreme Court

198 Ind. 690

154 N.E. 667

KINLEY

v.STATE.

No. 25091.

Supreme Court of Indiana.

Jan. 5, 1927.

Appeal from Jay Circuit Court; Roscoe D. Wheat, Judge.

Jess Kinley was convicted of selling intoxicating liquor, in violation of Burns' Ann. St. 1926, § 2717, and he appeals. Affirmed.

Malcolm V. Skinner and Urban T. Bonifas, both of Portland, for appellant.

Arthur L. Gilliom, Atty. Gen., and George J. Muller, Jr., Deputy Atty. Gen., for the State.

TRAVIS, J.

This is an appeal from a judgment on a verdict of guilty of selling intoxicating liquor. Section 2717, Burns' 1926 (Acts 1925, p. 144, c. 48, § 4).

According to appellant's narration of the evidence in his brief, two persons went to appellant's home in an automobile and there asked appellant for a pint of whisky. Appellant said that he had some, and then went out of the house and returned with some whisky and gave it to one of the two persons, who went to the house for the whisky, and received from the purchaser $2 for the whisky. The two persons then left the home of appellant in an automobile, going toward Portland, Ind. After drinking the whisky, the purchaser and his companion decided that they wanted more and went back to appellant and purchased another pint of whisky; all of which happened in Jay county, state of Indiana, June 27, 1925.

The crime was charged by an affidavit in one count to which appellant filed his motion to quash, which was by the court overruled. The issue made by defendant's plea of not guilty was submitted to the jury for trial. The jury returned a verdict of guilty, as charged in the affidavit. The judgment upon the verdict imposed a sentence of $100 fine and imprisonment for 30 days.

The errors assigned are upon the action of the court in overruling appellant's motion to quash the affidavit, which charged the offense, and upon the court's action in overruling his motion for a new trial. The cause for a new trial presented upon appeal is that the verdict of the jury is not sustained by sufficient evidence.

[1] Appellant makes the proposition upon his assignment of error, in overruling his motion to quash the affidavit, that no price was named in the affidavit for which the liquor was alleged to have been purchased. This proposition has heretofore been decided against appellant. Volker v. State ex rel., 177 Ind. 159, 97 N. E. 422;Clark v. State (1924) 195 Ind. 473, 145 N. E. 566.

[2] Under the second assignment of error, in relation to his motion for a new trial, appellant makes the proposition that there was a failure of proof that the liquor in question contained one-half of 1 per cent. of alcohol by volume, which is one of the...