Kyle v. The State

• Court: Indiana Appellate Court
• Writing for the Court: ROBINSON, J.
• Citation: Kyle v. The State, 47 N.E. 647, 18 Ind.App. 136 (Ind. App. 1897)
• Decision Date: 15 September 1897
• Docket Number: 2,408
• Parties: KYLE v. THE STATE

47 N.E. 647

18 Ind.App. 136

KYLE v. THE STATE

No. 2,408

Court of Appeals of Indiana

September 15, 1897

From the Grant Circuit Court.

Affirmed.

W. M Amsden, for appellant.

W. A Ketcham, Attorney-General, Merrill Moores and Elias Bundy for State.

OPINION

ROBINSON, J.

Appellant was convicted of giving away intoxicating liquor in a drug store without a prescription. He assigns as error the overruling of his motion for a new trial. A new trial was asked on the grounds that the verdict was contrary to the law and evidence, and was not sustained by sufficient evidence.

The section of the statute upon which the prosecution is based reads: "It shall be unlawful for any spirituous, vinous, or malt liquors to be sold or given away in any drug store in any quantity less than a quart at a time, except on the written prescription of a reputable practicing physician. Any person violating any of the provisions of this section shall be fined," etc. Acts 1895, p. 248, sec. 9 1-2.

The evidence shows that appellant was in charge of his drug store at the date charged in the indictment, and that he was in the store at the time. In the rear end of the store, about ten or twelve feet from the rear wall, was a prescription case. A door led from the rear end of the room into an adjoining wareroom. While appellant was engaged in sweeping the store, and was near the case and this back door, he saw the prosecuting witness, Morgan, go behind the case, and begin blacking his shoes. Shortly afterwards, and while appellant was still engaged in the rear part of the store, A. E. Welker, a practicing physician, came in and went behind the case, and poured from a flask two glasses of whiskey, drinking one himself, and handing the other to the prosecuting witness, which the witness drank. Welker and the prosecuting witness at once left the store and within a few minutes appellant found on the prescription case the following: "R. For B. Morgan. Spts. Fermenti q. s. Take as directed. A. E. Welker. Gas City, Feby. 16, 1896."

The liquor was not paid for at the time, but was charged to Welker, who had an account at the store.

It is contended that the evidence fails to show a gift by the appellant, and that if there was a gift of liquor to any one, appellant is protected by the prescription.

If appellant was present, and knew at the time that Welker gave the whiskey to Morgan, he became a party to a misdemeanor. It is an elementary principle that all persons who participate in an act or transaction which is a misdemeanor, are alike guilty.

It is true, there is no direct evidence that appellant knew at the time that the gift was made by Welker to Morgan. Morgan testified that appellant was within three or four feet of Welker, and could have seen and heard what was going on; that there was nothing to prevent his seeing and hearing. Appellant does not deny this, and admits he saw Welker and Morgan in the store, and that at the time he was engaged near the rear door back of the proscription case, and that within three or four minutes after they went out he went to the case, and found the prescription, which he placed on a hook with other prescriptions. No other persons were in the store at the time. Appellant may not have actually seen what took place, and it may have been done without his knowledge or consent, but the facts are sufficient to warrant the jury in inferring that the manner in which the gift was made was resorted to for the purpose of evading the statute.

When the State had shown that a gift of intoxicating liquor had been made in appellant's drug store while the appellant himself was present in the drug store, and only a few feet away, with nothing to prevent him from seeing and hearing what was going on, and that within two or three minutes afterwards appellant found on the case a paper calling for whiskey, which he placed on a hook with other prescriptions, such facts were presented as authorized the jury to conclude that the gift was made with appellant's consent. The statute does not...