Lee v. State

Decision Date28 October 1921
Docket NumberNo. 23929.,23929.
Citation191 Ind. 515,132 N.E. 582
PartiesLEE v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Criminal Court, Marion County; James A. Collins, Judge.

Harry Lee was convicted of keeping a place for gaming, and he appeals. Affirmed.Robbins & Weyl, of Indianapolis, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. E. F. White, Deputy Atty. Gen., for the State.

WILLOUGHBY, J.

The defendant was convicted of keeping a place for gaming in violation of section 2466, Burns' 1914. 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 30 days, and that he pay all costs of the action.

Judgment was rendered on this finding, and from this judgment the appellant apappeals, 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.

[1] 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's Crim. Law, § 1031.

In Davis v. State, 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:

“The purpose of the statute is to suppress gambling houses. If a person keeps a house to be used for gaming, he violates the statute, and may be convicted. If a person knowingly permits his house to be occupied or used for gaming, he that far makes it a gambling house, violates the statute, and may be convicted. In this sense, the offenses are separate, and may be separately prosecuted. And yet, in another sense, the offenses constitute the one offense of violating the statute against gambling houses. And in this sense, as was said in *** Sowle v. State , the offense of permitting the gambling is merged in the offense of keeping a gambling house.”

See, also, Dormer v. State, 2 Ind. 308;State v. Pancake, 74 Ind. 15.

The court did not err in overruling the motion to quash.

[2] 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, 130 N. E. 115;Howard v. State, 131 N. E. 403.

[3] 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, 142 Ind. 276, 41 N. E. 588, and Robinson v. State, 188 Ind. 467, 124 N. E. 489. The case of Hamilton v. State, supra, was overruled on this point by Lee v. State, 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, 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, 156 Ind. 41, 59 N. E. 169.

[4] 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 inferences and conclusions to be drawn therefrom, and will not consider any evidence which contradicts this evidence of the state. James v. State, 130 N. E. 115.

In the case of Robinson v. State, 188 Ind. 467, 124 N. E. 489, 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...

To continue reading

Request your trial
4 cases
  • Biddle v. State , 24811.
    • United States
    • Indiana Supreme Court
    • June 29, 1927
    ...with the inferences and conclusions to be drawn therefrom, and evidence contradictory thereto will not be considered. Lee v. State, 191 Ind. 515, 519, 132 N. E. 582. [6] The evidence most favorable to the state is that on January 8, 1924, the appellant, Morris Biddie, was living with his wi......
  • Wiggins v. State
    • United States
    • Indiana Supreme Court
    • October 11, 1923
    ...in these cases, we cannot disturb the judgment in either case. Shira v. State ex rel., 187 Ind. 441, 446, 119 N. E. 833;Lee v. State (Ind.) 132 N. E. 582. Each of the judgments in the above-entitled causes is therefore affirmed.TOWNSEND, J., absent. * Rehearing ...
  • Wiggins v. State
    • United States
    • Indiana Supreme Court
    • October 11, 1923
  • Lee v. State
    • United States
    • Indiana Supreme Court
    • October 28, 1921

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT