Scharillo v. State
| Decision Date | 26 June 1934 |
| Docket Number | 26064 |
| Citation | 191 N.E. 76,207 Ind. 22 |
| Parties | SCHARILLO v. STATE |
| Court | Indiana Supreme Court |
1. CRIMINAL LAW---Appeal---Reservation of Grounds in Lower Court---Objections to Evidence---Presented First on Appeal.---Grounds for objection to evidence not urged in the lower court cannot be presented for the first time on appeal p. 23.
2. CRIMINAL LAW---Appeal---Review of Evidence---"Hypothesis of Innocence" Rule.---Rule that "guilt can only be based upon circumstantial evidence when the proven circumstances cannot be reconciled with any hypothesis of innocence," though governing the deliberations of the jury, is not applicable on appeal, the question there being whether there was evidence from which the jury reasonably might have drawn an inference of guilt. p. 23.
3. INTOXICATING LIQUORS---Possession---Evidence---Sufficiency.---Circumstantial evidence reviewed and held sufficient for jury reasonably to infer that defendant was owner of restaurant and in possession of intoxicating liquor found on the premises. p 23.
4. INTOXICATING LIQUORS---Common Nuisance---Evidence---Reputation---Sufficiency.---Evidence that restaurant bore reputation of being place "where intoxicating liquors were sold and kept for sale" and "where people were permitted to resort for the purpose of drinking intoxicating liquors as a beverage," coupled with evidence that liquor was found on the premises and in possession of defendant, held sufficient to sustain conviction for maintaining a common nuisance. p. 25.
Vito Scharillo was convicted of possessing intoxicating liquors and maintaining a common nuisance, and he appealed. Affirmed.
Thomas D. Galasini and Wildermuth & Force, all of Gary, for appellant.
James M. Ogden, Atty. Gen., and Merl M. Wall, Sp. Asst. Atty. Gen for the State.
Appellant was convicted upon an affidavit in two counts. The first count charged the unlawful possession of intoxicating liquor, and the second charged appellant with maintaining a common nuisance as defined in section 2740, Burns' Ann. Ind. St. 1926, Acts 1925, c. 48, pp. 144, 154, § 24. The overruling of his motion for new trial is assigned as reversible error. The propositions presented thereunder on appeal are that the court erred in admitting certain exhibits in evidence and that the evidence is insufficient to sustain the verdict as to either count.
The exhibits objected to consisted of bills for soft drinks, for groceries, and for coal, a receipt for attorney's fees, and a radio payment book, all in appellant's name, which were found on the premises searched; also receipts for the delivery of carbonated drinks and supplies in the name of appellant, signed, according to his own testimony, by appellant.
Appellant contends that it was error 'to admit these exhibits in evidence without other competent evidence to connect them with appellant.' However, the record fails to disclose an objection to the exhibits upon any such ground, and appellant cannot now, for the first time, urge their inadmissibility upon that ground.
The exhibits were introduced as tending to establish a connection between appellant and the operation of the premises which consisted of a restaurant, soft drink establishment, and fruit market. Three bottles of home-brew were found in the restaurant, and a large quantity of alcohol and wine was found in a barn in the rear. A quantity of whisky was found buried in the sand at the chicken house, to which a path led from the rear door of the restaurant. A...
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