Ross v. State
| Decision Date | 10 January 1889 |
| Docket Number | 14,695 |
| Parties | Ross v. The State |
| Court | Indiana Supreme Court |
From the Knox Circuit Court.
The judgment is affirmed.
W. A Cullop and C. B. Kessinger, for appellant.
L. T Michener, Attorney General, O. H. Cobb, Prosecuting Attorney and J. C. Adams, for the State.
In this case the appellant was indicted, tried and convicted for an unlawful sale of intoxicating liquor to William Lankford, Jr., who was, at the time of such sale, under the age of twenty-one years. From the judgment of conviction he has appealed to this court, and has here assigned as error the overruling of his motion for a new trial.
The first contention of the appellant is, that there is a fatal variance between the indictment and the evidence in the cause. The supposed variance consists in this: It is charged in the indictment that the sale was made to William Lankford, Jr., while the evidence proves that it was made to William H. Lankford.
This has been held not to be a fatal variance. Foltz v. State, 33 Ind. 215; Choen v. State, 52 Ind. 347; Miller v. State, 69 Ind. 284.
It is also contended by the appellant that the finding of the court below is not sustained by sufficient evidence.
If a person sells intoxicating liquor to one having the appearance of being of full age, he is not liable to criminal prosecution if such sale be made in good faith, after due caution and in the honest belief that the purchaser is an adult, though in fact he is a minor. Goetz v. State, 41 Ind. 162; Payne v. State, 74 Ind. 203; Hunter v. State, 101 Ind. 241; Kreamer v. State, 106 Ind. 192, 6 N.E. 341.
As to Lankford's age, there is no conflict in the evidence. It may be conceded that at the time of the sale he was a minor.
The controversy on the trial related to his appearance and to the caution used by the appellant. Upon this branch of the case there is much conflict in the evidence. There is evidence in the record tending to support every material charge in the indictment. In such case this court will not interfere with the finding of the court below.
It is further contended that the circuit court erred in excluding certain evidence offered by the defendant on the trial. It appears by the record that the defendant testified as a witness in his own behalf.
After testifying that Lankford had the appearance of being a man of full age, that he had told him he was of age, and had voted at the preceding April election for township trustee, that he had exercised due care and caution to ascertain the age of the purchaser, and had sold him the liquor charged in the indictment in good faith, believing him to be over twenty-one years old, his counsel propounded to him this question: "Had you any intention of violating the law in making the sale to Lankford, as charged in the indictment?"
To this question the court sustained an objection, to which action of the court the appellant excepted.
Before defendants in criminal cases were permitted to testify in their own behalf there were no means of ascertaining the intent with which they did any particular act, except as it could...
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