Lee v. State
| Decision Date | 28 October 1921 |
| Docket Number | 23,929 |
| Parties | Lee v. State of Indiana |
| Court | Indiana Supreme Court |
Rehearing Denied February 2, 1922.
From Marion Criminal Court (51,313); James A. Collins, Judge.
Prosecution by the State of Indiana against Harry Lee. From a judgment of conviction, the defendant appeals.
Affirmed.
Robbins & Weyl, for the appellant.
U. S Lesh, Attorney-General, and Mrs. Edward Franklin White, for the state.
The defendant was convicted of keeping a place for gaming in violation of § 2466 Burns 1914, Acts 1905 p. 584, § 557. The trial was by the court without a jury. The court found the defendant guilty as charged in the affidavit and assessed as his punishment that he be fined in the sum of $ 25, and that he be imprisoned in the Marion county jail for a period of thirty days and that he pay all costs of the action.
Judgment was rendered on this finding and from this judgment the appellant appeals and assigns as error. 1. The court erred in the overruling of appellant's motion for a new trial. 2. The trial court erred in overruling appellant's motion to quash the affidavit.
The defendant claims that the facts stated in the affidavit do not constitute a public offense. That said affidavit does not state the offense with sufficient certainty.
An indictment for keeping a house to be used for gaming need not aver that any gaming has actually taken place. If such indictment alleges actual gaming it need not state the names of the players, though it may do so. An indictment for keeping a gambling house substantially in the language of the statute is sufficient. Ewbank, Criminal Law § 1031.
In Davis v. State (1885), 100 Ind. 154, the court in overruling a motion to quash an indictment in substantially the same form as the affidavit in this case and based upon a similar statute, said, See also, Dormer v. State (1850), 2 Ind. 308; State v. Pancake (1881), 74 Ind. 15. The court did not err in overruling the motion to quash.
It is claimed that the affidavit charges the appellant with two offenses, one being the keeping of a gaming house and the other knowingly permitting his house to be used and occupied for gaming and that before a conviction can be had the state must prove the commission of both of these offenses.
This court has held that where an affidavit charged in the language of the statute two public offenses, forbidden by the same section of the statute, if the evidence proved one of them but not the other, a general verdict of guilty will be deemed a verdict of guilty of the offense proved. James v. State (1921), 190 Ind. 629, 130 N.E. 115; Howard v. State (1921), ante 232, 131 N.E. 403.
The evidence in this case is partly circumstantial and the appellant contends that when evidence is circumstantial and leaves standing some reasonable hypothesis of innocence there can be no conviction, and when the record discloses that fact to the appellate tribunal, a judgment of conviction cannot be affirmed. To sustain this proposition he cites Hamilton v. State (1895), 142 Ind. 276, 41 N.E. 588, and Robinson v. State (1919), 188 Ind. 467, 124 N.E. 489. The case of Hamilton v. State, supra, was overruled on this point by Lee v. State (1901), 156 Ind. 541, 60 N.E. 299, where it is held that where the circumstances are of such a character that the jury might have reasonably drawn an inference of guilt of the accused, the question of guilt becomes one of fact for the determination of the jury and trial court and is not open to review on appeal.
Where the circumstantial evidence in a case is of such a character that two conflicting inferences may be reasonably drawn therefrom, one favorable to or tending to prove the guilt of the accused and the other favorable to his innocence, then, under such circumstances, it is not within the province of the Supreme Court to determine which inference ought to control the jury. This principle is laid down in Deal v. State (1895), 140 Ind. 354, 39 N.E. 930.
The rule that this court will not weigh the evidence applies whether the same is direct, circumstantial or both. McCaughey v. State (1901), 156 Ind. 41, 59 N.E. 169.
In considering whether the evidence is sufficient to sustain a verdict, only that evidence which is favorable to the prevailing party is considered. In this case the state is the prevailing party and in determining whether the evidence is sufficient to sustain the verdict this court will consider only the evidence most favorable to the state with the inferences and conclusions to be drawn therefrom, and will not consider any evidence which contradicts this evidence of the state. James v. State, supra.
In the case of Robinson v. State, supra, the question was upon the refusal of the court to give the following instruction, "Before you can convict this defendant on circumstantial evidence alone, the circumstances must be so strong and convincing as to be inconsistent with any reasonable hypothesis of the defendant's innocence."
In that case the court correctly held that it was error to refuse this instruction when no other instruction had been given embodying the propositions of law stated therein. This instruction was given for the guidance of the jury in the trial of the cause and stated the law correctly, but when a case is before this court on appeal on the sufficiency of the evidence this court will not...
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