Lee v. State
| Citation | 131 N.E. 3,190 Ind. 531 |
| Decision Date | 13 May 1921 |
| Docket Number | No. 23887.,23887. |
| Parties | LEE v. STATE. |
| Court | Supreme Court of Indiana |
OPINION TEXT STARTS HERE
Appeal from Criminal Court, Marion County; James A. Collins, Judge.
Harry Lee was convicted of unlawfully keeping intoxicating liquors with intent to sell, to persons within the state, and he appeals from an order denying a new trial. Judgment reversed, with instructions to sustain defendant's motion for new trial.
Holmes & McCallister, of Indianapolis, for appellant.
U. S. Lesh and Mrs. Edward Franklin White, both of Indianapolis, for the State.
Appellant, with four other persons, was by affidavit jointly charged with unlawfully keeping intoxicating liquors with intent to sell, barter, exchange, give away, furnish, and otherwise dispose of the same to persons within this state to the affiant unknown. Section 4, Acts 1917, p. 15. A nolle prosequi was entered as to two of the persons so charged, and on a plea of not guilty by the other three trial was had before the court without the intervention of a jury, which resulted in a finding of guilty and judgment in accordance with the finding. Appellant alone appeals, and assigns as error the overruling of his motion for a new trial.
[1] The only question for decision involves the sufficiency of the evidence to sustain the decision of the trial court. We are not permitted to weigh the evidence. It is our province to consider only such evidence, if any, as will sustain the decision of the trial court. The evidence is exceptional in many respects. There is no evidence that appellant ever sold, bartered, exchanged, gave away, furnished, or otherwise disposed of any intoxicating liquor of any character or kind, or that he was engaged in a business where liquor of any kind was likely to be sold, nor does it appear that any liquor was ever found in his possession, unless the facts to which we shall hereafter call attention can be thus construed.
Briefly stated, the only evidence tending to support the charge was given by a Mr. Keeler, against whom appellant had filed an affidavit charging him with the larceny of his automobile. Mr. Keeler had a friend who had three cases of whisky for sale, and he undertook to assist him in disposing of it. At that time Keeler and appellant were not acquainted. A third party brought them together in front of appellant's place of business at No. 508 Indiana avenue, Indianapolis. Keeler proposed to sell the whisky to appellant, naming a price and saying that it was bonded whisky. Appellant told Keeler he would like to have some of it, but that he was busy and could not go and see it. Late in the afternoon Keeler again called upon appellant and induced him to go to the place where the whisky was kept, and, after sampling it, appellant said he would take it the next day. The next morning, which was Sunday, Keeler called at appellant's place of business, and there learned that appellant was at home. A young fellow whose name he afterwards learned was Harrison, and who worked for a man by the name of Brown, went with Keeler to appellant's residence. Keeler went in and found that appellant was in bed. Appellant said, “I will send my car and this fellow, my partner, to get money and go out and get the liquor.” The witness said, “I will drive your car.” He said, “No; I will get a driver for my car.” The witness did not know the amount. The car was driven by a young man by the name of Reed. He had no money. It further appears without contradiction that Reed was engaged in repairing and driving automobiles; that he kept appellant's car in repair and had recently worked on it and left it in front of appellant's place of business. Harrison and Reed were well acquainted with each other, and on the Sunday morning in question Harrison asked...
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