Rock v. State

• Citation: 110 N.E. 212,185 Ind. 51
• Decision Date: 23 November 1915
• Docket Number: No. 22861.,22861.
• Parties: ROCK v. STATE.
• Court: Indiana Supreme Court

185 Ind. 51

110 N.E. 212

ROCK

v.STATE.

No. 22861.

Supreme Court of Indiana.

Nov. 23, 1915.

Appeal from Circuit Court, Lawrence County; Oren O. Swails, Judge.

Tony Rock was convicted of keeping a blind tiger, and he appeals. Reversed.

Robert L. Mellen and Simpson B. Lowe, both of Bedford, for appellant. Richard M. Milburn, Atty. Gen., Marshall Woolery, of Bedford, and Horace M. Kean, Leslie R. Naftzger, Omer S. Jackson, Michael A. Sweeney, and Wilbur T. Gruber, Asst. Attys. Gen., for the State.

ERWIN, J.

Appellant was convicted of keeping what is known as a “blind tiger,” in violation of section 8351, Burns 1908 (Acts 1907, p. 689). The affidavit on which appellant was put to trial, omitting the formal parts, reads as follows:

“That at the county of Lawrence and state of Indiana one Tony Rock, of said county and state, did then and there unlawfully keep, run, and operate a place where intoxicating liquors were sold, bartered, and given away in violation of the laws of this state.”

Trial was had by jury, and resulted in conviction, and the penalty assessed was a fine of $150 and 50 days in jail. Error assigned and not waived is the overruling of the motion for a new trial.

[1] It is insisted by appellant that the court erred in overruling his challenge for cause of a certain juror. The record in this case fails to show that appellant had availed himself of any peremptory challenges, and, if it be conceded that the failure to sustain his challenge for cause was error, it is not available, unless it be shown that he had exhausted his peremptory challenges. Voight v. State, 145 Ind. 12–19, 43 N. E. 1049;Siberry v. State, 149 Ind. 685–703, 39 N. E. 936, 47 N. E. 458;Woods v. State, 134 Ind. 35, 33 N. E. 901.

[2][3] Appellant insists that the court erred in permitting certain witnesses to testify regarding a transaction and conversation had at a time some liquor was bought in his place of business, at a time when it was not shown appellant was present. It is not shown what answers were given or that the questions were answered at all. This presents no question for review. Appellant testified in his own behalf, and on cross–examination was asked if he had not been, some years before, arrested on a charge of maintaining a nuisance, in that he had kept a place wherein intoxicating liquors were sold to a great number of persons who became intoxicated and went upon the street and talked in a loud manner and indulged in profane language, and that he entered a plea of guilty to the charge, and was fined $5. To this question appellant interposed an objection, which was overruled by the court, and appellant answered: “No, sir; I did not.” On rebuttal the state offered, over the objection of appellant, a record of the indictment returned by the grand jury of Lawrence county, charging appellant with the offense of maintaining a nuisance on September 28, 1911, at said county, together with a finding and judgment of conviction, assessing a fine of $5, with the costs of prosecution. Appellant contends that this was error, and in this we concur. It was said by this court in Dunn v. State, 162 Ind. 174, 70 N. E. 521:

“The law will not permit the state to depart from the issue, and introduce evidence of other extraneous offenses or misconduct that have no natural connection with the pending charge, and which are calculated to prejudice the accused in his defense”—citing a number of cases.

It was said further in the same case:

“It is a rule as old as the law itself, subject to numerous exceptions, *** that substantive evidence in both civil and criminal cases must be confined to the facts embraced within the issue joined, and that no such evidence is competent that does not form a link in the chain of proof which naturally and reasonably tends to establish some material fact in the case as made between the...