Patterson v. State

• Decision Date: 25 October 1921
• Docket Number: No. 23941.,23941.
• Citation: 191 Ind. 224,132 N.E. 585
• Parties: PATTERSON v. STATE.
• Court: Indiana Supreme Court

191 Ind. 224

132 N.E. 585

PATTERSON

v.STATE.

No. 23941.

Supreme Court of Indiana.

Oct. 25, 1921.

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

Frank Patterson was convicted of violating the prohibition law and he appeals. Reversed, with instructions to sustain motion for new trial.

James D. Ermston, of Indianapolis, for appellant.

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

WILLOUGHBY, J.

The appellant was convicted by the criminal court of Marion county, Ind., of violating the prohibition act (Acts 1917, p. 15).

The affidavit was in five counts. The defendant pleaded “not guilty.” The trial was by the court without a jury, and a finding of guilty was made by the court, and judgment rendered upon such finding that the appellant be fined $100 and costs, and be imprisoned for the period of 30 days. From this judgment appellant appeals.

The questions arising upon the appeal grow out of the overruling of the motion for a new trial, and the specifications in such motion were: First, the finding of the court is contrary to law; and, second, the finding of the court is not sustained by sufficient evidence. The appellant contends that the record fails to show any evidence or proof of the venue. The caption of the affidavit is “State of Indiana, Marion County, City of Indianapolis.” The record discloses that the case was tried in the Marion criminal court of Marion county, state of Indiana. The affidavit alleges that the crime was committed in the city of Indianapolis, in Marion county, state of Indiana.

Griff Marcey, a witness for the state, testified as follows:

“I am a member of the police department of the city of Indianapolis. I know the defendant, Frank Patterson, when I see him. He lives at 338 North Holmes avenue. I was at his home about the 19th of September, 1920.”

Another witness on behalf of the state testified:

“I know the defendant, Frank Patterson. He lives at 338 North Holmes avenue. I visited his home on or about the 18th day of September, 1920.”

The defendant testified in his own behalf, as follows:

“My name is Frank Patterson. I am the defendant in this case. I am 24 years of age, and live at 338 North Holmes avenue. I have lived in this city all my life. I lived at 338 North Holmes avenue on the 19th and 20th of September of last year. My mother lives in the city. I was born and raised here.”

[1] This evidence, taken with other testimony in the case which shows that the offense committed by the defendant, if he committed any, was at his home, is evidence from which the court would be justified in finding that the offense, if any was committed, was committed in the city of Indianapolis, Marion county, in the state of Indiana. See Williams v. State, 168 Ind. 87, 79 N. E. 1079, and cases there cited. We think the venue was sufficiently proven.

The appellant contends that the evidence was not sufficient to support a finding upon either of the five counts of the affidavit.

The first count, after stating the venue to be in the city of Indianapolis, Marion county, state of Indiana, charges that Frank Patterson, on September 20, 1920, did then and there unlawfully furnish and dispose of intoxicating liquors to wit, whisky, wine and beer.

The second count charges that Frank Patterson did then and there unlawfully keep and have in his possession intoxicating liquors, to wit, whisky, gin, wine, and beer, with the intent then and there to sell, barter, exchange, and give away and otherwise dispose of the same.

The fourth count charges that the defendant, Frank Patterson, did then and there, unlawfully keep and manufacture intoxicating liquors, to wit, whisky, gin, wine, and beer, with the intent then and there to sell, barter, exchange and furnish the same...