Schwomeyer v. State, 24208.

Decision Date06 April 1923
Docket NumberNo. 24208.,24208.
Citation193 Ind. 99,138 N.E. 823
PartiesSCHWOMEYER v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Morgan County; A. M. Bain, Judge.

Fred Schwomeyer was convicted of a crime, and appeals. Reversed.

Alvah Rucker, of Indianapolis, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward Franklin White, Deputy Atty. Gen., for the State.

EWBANK, J.

Appellant was prosecuted on an affidavit of two counts. The first count charged that he unlawfully manufactured intoxicating liquor, to wit, whisky, and the second that he unlawfully possessed a still and device and property for the manufacture of intoxicating liquor and intended for use in violation of the laws of the state of Indiana. Each count alleged that the offense was committed on the 11th of October, 1921. The trial took place in February, 1922.

There was evidence of circumstances relied on by the state as supporting an inference of appellant's guilt, including the facts that on October 11, 1921, the sheriff and his deputies, with a search warrant, found, near an old house which had been rented to appellant by his brother-in-law for the storage of wheat, some articles which were afterward put together in a way that the officers said indicated they had been used as parts of a still. A 17 year old boy, a grandnephew of the brother-in-law and of appellant's wife, gave the only direct evidence connecting appellant with the possession of a still or the use of one; all the other evidence against him being circumstantial. The boy testified that in May, 1921, when he and his mother lived in a house near where the articles were found, on the farm of John Fidler, the brother-in-law, he followed appellant and Fidler into the woods on the farm of Robert Mannan, adjoining the one owned by Fidler, and there found them with a big candy bucket, a steel oil tank, such as they have oil in at garages, a coil, and a piece of rubber hose, which were capable of being, and were then, put together in the form of a still, and saw them cooking something in the steel tank, but what it was the boy did not know; that this was on Sunday, about 3 o'clock, and he thought it was about the third Sunday in May; but on direct examination and again on cross-examination he stated that it was “along in May,” and did not suggest that it could have been in any other month. No intoxicating liquor was found on the premises or traced into appellant's possession.

No instructions are shown to have been asked by appellant but the court, of its own motion, gave instructions as follows:

“11. If you find defendant guilty of making whisky or of having a still as charged, then it is immaterial whether such offense was committed on the particular date charged in the affidavit or not, if it was in fact committed within two years prior to the date the affidavit was filed; and it is not material whether he made such whisky or had said still, if he was guilty of either, upon land owned by John Fidler or upon the land of Robert Mannan, or at both places at different times, if both places were in Morgan county.

7. *** If he (appellant) acted jointly with Fidler, or if he assisted Fidler in committing either offense charged, defendant would himself be guilty. ***”

And several other instructions were also given which could be understood as authorizing conviction of appellant on the charge of having possession of a still, if they believed...

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