Schondel v. State

• Decision Date: 29 November 1910
• Docket Number: 21,550
• Citation: 93 N.E. 67,174 Ind. 734
• Parties: Schondel v. The State of Indiana
• Court: Indiana Supreme Court

93 N.E. 67

174 Ind. 734

Schondel v. The State of Indiana

No. 21,550

Supreme Court of Indiana

November 29, 1910

From Dekalb Circuit Court; Emmet A. Bratton, Judge.

Prosecution by The State of Indiana against George Schondel. From a judgment of conviction, he appeals.

Affirmed.

Sharpless & Atkinson and B. F. Enos, for appellant.

James Bingham, Attorney-General, A. G. Cavins, E. M. White and W H. Thompson, for the State.

OPINION

Jordan, J.

Appellant was indicted by a grand jury of Dekalb county, upon the charge of having violated section one of an act entitled "An act to better regulate the sale of intoxicating" liquors, etc. (Acts 1907 p. 689, § 8351 Burns 1908.) The offense, as charged in the indictment is that appellant, on March 6, 1909, at Dekalb county Indiana, did unlawfully sell to Herman Newman, for the price of $ 1, twelve quarts of intoxicating liquor, to wit, beer; he not then and there being licensed so to do. The exceptions made by the provisos of the section in question--"that none of the provisions of this act shall apply to any person, firm or corporation engaged as a wholesale dealer who does not sell in less quantities than five gallons at a time and provided that none of the provisions of this section shall apply to any druggist or pharmacist who is licensed as such by the state board of pharmacy"--were negatived in the indictment.

Appellant unsuccessfully moved to quash the indictment, and upon his plea of not guilty he was tried by a jury and a verdict returned finding him guilty as charged, and assessing against him a fine of $ 50. His motion for a new trial was denied, and judgment was rendered on the verdict. The alleged errors in this appeal, upon which he predicates his demand for a reversal of the judgment below, arise from the overruling of the motion to quash the indictment and the overruling of the motion for a new trial.

It is first urged that the indictment should have been quashed because it does not sufficiently negative the exceptions embraced in the provisos to which we have referred. It was not necessary to negative any of the exceptions made by the provisos. This identical question was presented in the case of Yazel v. State (1908), 170 Ind. 535, 84 N.E. 972, and decided adversely to appellant's contention.

When the jury was being impaneled in this cause, and after defendant had examined all of the twelve jurors composing the panel and had excused one, he thereupon passed the jury over to the prosecuting attorney. After the latter had fully examined the jurors, he excused one and passed the jury back to defendant. The latter then excused one of the jurors, who was a member of the regular panel, and examined others who had been called by the sheriff to sit upon the jury in the place of those excused. He, by his counsel, then announced to the court that he would pass the jury for the present. The court thereupon required him to pass the jury definitely as to all the jurors then composing the panel, and to determine definitely whether the jury as then composed was satisfactory to him, before he repassed it to the State. This defendant refused to do, but claimed the right further to challenge after the prosecuting attorney had repassed the jury to him. Thereupon the court ruled that it would permit defendant to exercise peremptory challenges or for cause as to persons who might be called to sit upon the jury to replace any juror or jurors who might thereafter be challenged or excused by the prosecuting attorney. To this ruling of the court, requiring defendant to make all the peremptory challenges before the jury was repassed and turned over to the State's attorney, defendant excepted, and urges it in this appeal as error.

On this point the record presents no reversible error, as it is not disclosed that he was compelled to accept the jury, and go to trial before it with some juror thereon whom he would have peremptorily challenged, but was prevented from doing so by the ruling of the court, of which he complains. It does not appear by the record that he was in any manner deprived of an opportunity to interpose any peremptory challenge in respect to some member of the jury. Under the circumstances, there was no error in the ruling in question. McDonald v. State (1909), 172 Ind. 393, 88 N.E. 673.

Again, upon another view of the question, it may be said that the court had the right, in the exercise of its discretion, after the jury had been passed back by the State to the defendant for his further consideration, to require defendant either to exercise his right to challenge further or to accept the jury as it was then composed, subject, however, to his right thereafter to challenge any juror who might be called by the sheriff to replace one who had been challenged or excused by the prosecuting attorney. McDonald v. State, supra.

During the argument to the jury by the prosecuting attorney, that official said: "This case is entitled 'The State of Indiana v. George Schondel,' but it might as well be entitled 'The State of Indiana v. Diehl Brewing Company, by George Schondel, its next friend,'" and that the Diehl Brewing Company was at the back of the defendant in this prosecution. To these statements made by the prosecuting attorney to the jury appellant objected, but his objection was overruled. Upon this ruling he seeks to predicate reversible error. Possibly it may be said that these statements of the State's attorney related merely to a collateral matter which did not have any bearing upon the guilt of appellant. Nevertheless there is evidence in the case to show that the beer which appellant is charged with having unlawfully sold was brewed by the Diehl Brewing Company, and shipped by the latter to the town of Garrett, in Dekalb county, Indiana. The brewery is situated at the city of Defiance, Ohio, at which place the company conducts its business. As shown by the evidence, appellant had been the agent of this company in delivering its beer to persons at said town of Garrett before Dekalb county became anti-saloon territory, by virtue of remonstrances filed against the liquor traffic under the Moore law. After Dekalb county became dry territory appellant continued to act, as he stated at the trial upon the witness-stand, as the agent of the company in gathering up and returning its empty bottles, which had contained beer shipped by the company to consumers in the town of Garrett and other points in said county. He appears to have solicited orders from persons for beer to be shipped to them by said brewing company. The brewing company at the trial had present one of its principal officers, who testified in behalf of appellant. Under the evidence, it was the theory of the State upon the trial that appellant, in delivering the beer in question to the prosecuting witness, and in collecting from him the money therefor, was acting as the agent of the Diehl Brewing Company. There is evidence tending to sustain this theory. The State was warranted in placing a construction upon the evidence and circumstances, and thereunder claiming that the Diehl Brewing Company was interested in the case and was standing by appellant, its agent, or back of him in this prosecution.

Were it conceded that the attorney for the State, in making the statements of which appellant complains, transgressed the bounds of legal argument, still the statements cannot be said to be of such importance as to afford appellant ground for reversible error, for as said in the case of Combs v. State (1881), 75 Ind. 215: "If every immaterial assertion or statement which creeps into an argument were to be held ground for reversal courts would be so much occupied in criticising the addresses of advocates as to have little time for anything else. A common fairness requires that courts should ascribe to jurors ordinary intelligence, and not disregard their verdicts because counsel during their argument may have made some general statements not supported by the evidence. Of course, there may be cases where the matters stated are so weighty and important as to do the accused injury, and, whenever this is so, the appellate court should not hesitate to adjudge a reversal." It was said in the case of Morrison v. State (1881), 76 Ind. 335, that "if, for every transgression of the prosecuting attorney beyond the bounds of logical or strictly legal argument, the defendant could claim a new trial, few verdicts could stand, and the administration of criminal justice would become impracticable." It...