Merrill v. State

• Decision Date: 31 January 1911
• Docket Number: No. 21,644.,21,644.
• Citation: 93 N.E. 857,175 Ind. 139
• Parties: MERRILL v. STATE.
• Court: Indiana Supreme Court

175 Ind. 139

93 N.E. 857

MERRILL

v.STATE.

No. 21,644.

Supreme Court of Indiana.

Jan. 31, 1911.

Appeal from Circuit Court, Howard County; L. J. Kirkpatrick, Judge.

William Merrill was convicted of unlawfully selling intoxicating liquors, and he appeals. Affirmed.Herron & Byers, for appellant. Jas. A. Bingham, A. G. Manning, E. M. White, A. G. Cavins, and Wm. H. Thompson, for the State.

MYERS, C. J.

Appellant was indicted, tried, and convicted upon an indictment in six counts, under section 8337, Burns' Ann. St. 1908. The first charged an unlawful sale to Angelo Martello of 21 pints of beer, defendant not having a license. The second charged the unlawful operation of a place where intoxicating liquors were sold without a license. The third charged the unlawful operation of a place where intoxicating liquors were given away without a license. The fourth, fifth, and sixth that appellant was unlawfully found in possession of 21 pints of beer which he had in his possession for the purpose of selling to Angelo Martello, he not having a license. The court found him guilty generally of “the unlawful sale of liquor as charged in the indictment,” and he was fined.

The error assigned is upon overruling his motion for a new trial. The Attorney General challenges the jurisdiction of this court upon the ground that prior to the filing of the transcript in this court no notice of appeal had been given to the prosecuting attorney, and no waiver filed, or appearance entered. The judgment was rendered February 18, 1910, the transcript was filed in this court March 31, 1910. Appellant's brief was filed March 31, 1910, and appellee's brief was filed July 15, 1910, in which the point was raised as to want of jurisdiction, and on July 29, 1910, appellant notified the prosecuting attorney of the appeal and filed proof of such notice in the office of the clerk of this court July 30, 1910. This is held to be such a compliance with the statute as to confer jurisdiction. State v. Sutherlin, 165 Ind. 339, 75 N. E. 642;Beggs v. State, 122 Ind. 54, 23 N. E. 693. Appellant's claim of error is that the finding is contrary to law, in that the evidence does not show a sale by appellant. It is disclosed by the evidence that prior to a local option election, and whilst saloons were in operation in Howard county, Edward Weiser kept a bottling house in Kokomo and was agent for the bottling, and sale of the Terre Haute Brewing Company's beer, and appellant had for a number of years been employed by Weiser in the delivery of beer with Weiser's horses and wagons or those of the Terre Haute Brewing Company, and, after the operation of saloons was suspended in that county, appellant kept the horses and wagons in the same barn. He claimed that he had the use of the horses and wagons for caring for the horses. When not employed in delivering beer, he was employed by one person in delivering coal in the same wagon in which he delivered beer, and was engaged more or less in delivering beer shipped by Donnelly after the saloons were suspended in Howard county, and collecting and removing the empties.

The prosecuting witness testified: That about a week prior to December 24, 1909, he asked the Weiser boys, of whom he had been accustomed to get beer-there were two of the Weisers-whether there was any way he could get beer, and was told they could not furnish it. Shortly thereafter he received a circular through the mail, and with it a postal card, as he called it, upon which he was informed that if he would sign the card and put $2 in the inclosed envelope, and mail it back, he would receive a case of beer. He did not know the parties to whom the card was sent, but he signed the card, and inclosed $2 as directed, and received a case of beer at his house between 7 and 8 o'clock a. m., delivered there by appellant, who was paid 15 cents by the witness' wife in his absence. That the witness did not know the beer was at the station, and did not order its delivery by appellant, though appellant had theretofore spoken to him in regard to deliveries generally of shipments to him. This was supplemented by the testimony of Maurice Donnelly: That he was a licensed saloon keeper of Marion county, Ind., and was a general agent of the Terre Haute Brewing Company. That he had never seen appellant, or engaged him to deliver beer, but had obtained his name from Mr. Edward Weiser, whom he had known for a number of years. He was shown a blank order in the following form and terms: “Indianapolis, Ind. Maurice Donnelly, Licensed Liquor Dealer, 131 N. Pennsylvania St., Indianapolis, Ind. Please deliver to my address - dozen large bottles Terre Haute Brewing Co.'s Beer, - dozen small bottles Terre Haute Brewing Co.'s Beer. Name. -. Address. -. Orders will be filled only at Licensed Liquor House, 131 N. Pennsylvania St., Indianapolis, Ind., and will not become binding until accepted by the above named dealer.” This he said he had sent to persons whose names were sent in from agencies as the form of order blank. The exact filling of blanks in the order used in this case is not shown. That he had made a shipment of beer to Kokomo consigned to appellant December 23, 1909. Appellant's name was on the cases, and the name also of the person to whom the case was to be delivered. The waybill was for a consignment of 43 cases of bottled beer, 1/2 barrel of beer and 1/4 barrel of beer, all consigned to appellant in one shipment. The freight on the 43 cases was $5.81 and on the barrel beer 43 cents and was prepaid. There was no bill of lading. The witness testified: That the freight was added to the price at which the beer was sold if delivered at his place, and he paid the freight on shipment. He could not recall the name Martello to whom the sale was alleged to have been made. That the empty bottles and cases were shipped back to him without any arrangement with appellant to collect and return them, other than request to the parties for the return of the empties or they would be charged with them; could not say whether he had received a list from Weiser or not. Appellant testified that he delivered the beer to Martello December 24th which he had gotten at the railway station, shipped by Donnelly; that he also delivered some 40 other cases of beer to a number of other persons that day; that in light work he used the light wagon of Weiser, and in heavy work he used the Terre Haute Brewing Company's wagon; that he took care of the horses for their use, and the use of the wagons; he worked at delivering coal and delivering beer that was shipped from Indianapolis; that he was supposed to deliver the beer and take the empties out of the way for 15 cents, but had no contract with Martello or Mrs. English, for whom he had a shipment at the same time, but could not give the names of those to whom the other cases were delivered by him except two, those were the ones found by the officers; that they were customers of Weiser's and had been for some time; that he took chances on the parties paying him when he delivered beer; he was not doing a general drayage business. There was evidence by him before the grand jury that Weiser had told him to take the empties to the railway station. On the morning of December 24th, one of the...