Strickland v. The State
| Decision Date | 02 February 1909 |
| Docket Number | 21,320 |
| Citation | 87 N.E. 12,171 Ind. 642 |
| Parties | Strickland v. The State of Indiana |
| Court | Indiana Supreme Court |
From Gibson Circuit Court; O. M. Welborn, Judge.
Prosecution by The State of Indiana against Horace Strickland. From a judgment of conviction, defendant appeals.
Affirmed.
Luther Benson, Claude Smith, Johnson & Johnson, and Thomas Duncan, for appellant.
James Bingham, Attorney-General; A. G. Cavins, E. M. White and W H. Thompson, for the State.
Appellant was convicted of selling intoxicating liquor as a druggist to one known to him to be in the habit of using such liquors as a beverage. The overruling of his motion for a new trial is assigned as error. The motion for a new trial charges error in the admission of certain testimony, and that the finding of the court is not sustained by sufficient evidence and is contrary to law.
The trial occurred in the court below May 13, 1908, and it appears from the record that, on May 9 preceding, the prosecuting attorney served notice in writing upon appellant's attorneys to produce at the trial, for use as evidence, the signed application for one quart of intoxicating liquor, executed by Edward G. Wilson to appellant, dated on or about September 1, 1907, and on May 12, upon a showing of such notice and motion of the prosecuting attorney, appellant was ordered and directed by the court to produce the writing therein mentioned at the trial. The writing was not produced at the trial, and its production by the accused could not be enforced. The prosecuting attorney testified as a witness, and, after reading the notice to produce the written application for liquor, before mentioned, was asked to state the contents of such application. Appellant's counsel objected to such oral testimony, on the ground that "no proper foundation has been laid for the introduction of secondary evidence, by showing either loss or destruction of the application." The objection stated is only applicable when the parol proof offered relates to the contents of a writing in the possession of a third person or in the possession or under the control of the party seeking to make such secondary proof. The law required appellant as a druggist to preserve, for at least one year from the date of sale, the written application for liquor upon which such sale was made, and the State was proceeding upon the theory that appellant had obeyed the law in this respect and had possession of such writing. Appellant's counsel make the point here that an affidavit should have been filed showing the necessity and the materiality of such paper or document and that the same was in the possession of defendant, as required by the code in civil cases. § 502 Burns 1908 § 479 R. S. 1881. Assuming, without deciding, that the rule in civil cases in this matter governs criminal proceedings, the appellant, not having made in the lower court the objection now urged, cannot make it for the first time on appeal. This objection should, furthermore, have been made at the time the prosecutor applied to the court for an order to produce the writing, and, not having been then raised, would not be availing if made for the first time upon the trial. Cleveland, etc., R. Co. v. Closser (1890), 126 Ind. 348, 26 N.E. 159, 9 L.R.A. 754, 22 Am. St. 593.
The next contention is that extrajudicial confessions, alone and uncorroborated, are insufficient to establish the corpus delicti. Elcania S. Peacock testified that he had a conversation with appellant, since the commencement of this prosecution, about the sale of liquor to Edward G. Wilson upon the written application heretofore mentioned, in which appellant said Wilson came in and made the application, but did not bring the money, and he did not let him have the whisky, but later he (Wilson) came back with the money, and he let him have it upon the application already made out. This...
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