State v. Kubiak

• Decision Date: 20 October 1936
• Docket Number: 26646.
• Citation: 4 N.E.2d 193,210 Ind. 479
• Parties: STATE v. KUBIAK et al.
• Court: Indiana Supreme Court

4 N.E.2d 193

210 Ind. 479

STATE v. KUBIAK et al.

No. 26646.

Supreme Court of Indiana.

October 20, 1936

Joseph T. Kubiak and another were charged with the unlawful sale of alcoholic beverages. Judgment for defendants, and the State appeals.

Appeal sustained.

Appeal from Superior Court, St. Joseph County; J. Elmer Peak, judge.

Philip Lutz, Jr., Atty. Gen., and Wm. E. Bussell Asst. Atty. Gen., for the State.

Frank E. Coughlin and Geo. Sands, both of South Bend, for appellees.

FANSLER, Judge.

Defendants were charged with the unlawful sale of alcoholic beverages. Two witnesses, police officers, testified that they had purchased liquor from the defendants. When the state rested its case, the court, on motion of the defendants instructed the jury that the evidence to sustain the state's case rested upon the testimony of two newly created police officers, who had admitted that they had imbibed one or more glasses of whisky at four or five different establishments; that they must have reached a state of intoxication; and that therefore their evidence was not such that a conviction could stand upon it; and the jury was instructed to return a verdict for the defendants. The verdict was accordingly returned, and there was judgment for the defendants. The state excepted to the peremptory instruction, and has appealed, assigning the action of the court in giving the instruction as error.

It is thoroughly settled by the decisions in this state that a peremptory instruction directing a verdict can only be given where there is a total absence of evidence upon some essential issue, or where there is no conflict in the evidence, and it is susceptible of but one inference and that inference is favorable to the party asking the instruction. Watson's Rev. of Works' Practice and Forms, § 1685. The witnesses had testified positively to material facts which sustained the state's case. There was therefore not a total absence of testimony. Whether the state had proven its case, after this testimony was in depended upon whether the jury would give credence to the testimony. Where a determination of the issue involves the credibility of witnesses, it is an invasion of the province of the jury for the court to direct a verdict. Haughton v. Aetna Life Insurance Co. (1905) 165 Ind. 32, 73 N.E. 592,74 N.E. 613.

Appellees contend that the action of the court in giving the instruction involved a ruling on the competency...