Tutsbree v. State

• Decision Date: 13 November 1924
• Docket Number: No. 24558.,24558.
• Parties: TUTSBREE v. STATE.
• Court: Indiana Supreme Court

195 Ind. 581

145 N.E. 490

TUTSBREE

v.STATE.

No. 24558.^*

Supreme Court of Indiana.

Nov. 13, 1924.

Appeal from Circuit Court, Cass County; Paul M. Souder, Judge.

Oliver Tutsbree was convicted of manufacturing and possessing intoxicating liquor, with intent to sell, barter, etc., and he appeals. Affirmed.Rabb, Mahoney & Fansler, of Logansport, for appellant.

U. S. Lesh, Atty. Gen., and O. S. Boling, of Indianapolis, for the State.

EWBANK, J.

Appellant was tried upon an issue joined by his plea of not guilty to an affidavit of three counts. The first count charged that he unlawfully manufactured intoxicating liquor; the second charged that he unlawfully possessed a certain still; and the third that on the 13th day of December, 1922, he had in his possession intoxicating liquor, with intent to sell, barter, exchange, give away, furnish, and otherwise dispose of the same to persons unknown within this state. The jury returned a verdict, finding him guilty on the first and third counts, and imposed a fine and imprisonment for each offense. Overruling the motion for a new trial is the only error assigned, under which appellant complains that the verdict is not sustained by sufficient evidence, and is contrary to law.

[1] In passing on such a motion we must accept as true the evidence and the inferences which reasonably may be drawn from the evidence, that tend to sustain the verdict, and reject as untrue all evidence and inferences to the contrary. Lee v. State, 191 Ind. 515, 132 N. E. 582;Hall v. State (Ind. Sup.) 139 N. E. 588;Jackson v. State (Ind. Sup.) 143 N. E. 625.

There was evidence that, on the day the offenses were alleged to have been committed, certain police officers, certain federal prohibition officers, and the sheriff, with a search warrant, went into a house having two rooms and only two windows, which a witness referred to as an “old shack,” that stood down by the river, four miles from Logansport, near a quarry, and in the first room they entered found appellant beside a table, with a man, from a fishing camp not far away, and a woman also, at the table, and a bottle nearly full of intoxicating liquor upon it; that appellant sprang to his feet as the officers entered; that in the room where he was a still was in operation with a fire under it, and 15 or 20 feet away through an open door in the other room, another still was also in operation, both making whisky; that appellant had on a suit of old clothes, and after his arrest changed them for a fairly good suit of clothes that he had there in the house; that 21 barrels of “mash,” consisting of ground corn, sugar, and yeast, were found in the cellar, each barrel holding 50 gallons, and 15 or 18 gallons of intoxicating liquor was found on the premises including the bottle on the table that was almost full, and after saying to the arresting officer that he would like to have a drink, and being given permission, appellant drank from the bottle; that one Wilkins, who was also in the house when the officers entered, jumped out of the window from the other room, but was overtaken and brought back, when he said in the presence of appellant that a third man also found there...