Wallace v. State

• Decision Date: 28 October 1920
• Docket Number: No. 23772.,23772.
• Citation: 189 Ind. 562,128 N.E. 604
• Court: Indiana Supreme Court
• Parties: WALLACE v. STATE.

189 Ind. 562

128 N.E. 604

WALLACE

v.STATE.

No. 23772.

Supreme Court of Indiana.

Oct. 28, 1920.

Appeal from Circuit Court, Vigo County; Charles Pullian, Judge.

William Wallace was convicted of violating the liquor laws, and he appeals. Reversed, with instructions.

Miller & Kelley, of Terre Haute, for appellant.

Ele Stansbury and Aladar H. Hamborszky, both of Indianapolis, for the State.

LAIRY, J.

Appellant was tried and convicted in the Vigo circuit court on an affidavit consisting of three counts. The first count charges the defendant with keeping and maintaining a place where intoxicating liquors were then and there kept for sale, etc., in violation of law, and where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage, in violation of the laws of the state.

The second count charged that appellant was, on the date mentioned in the affidavit, in the possession of intoxicating liquors, and that he unlawfully failed to remove and cause said intoxicating liquors to be removed, from the state within 10 days after the 2d day of April, 1918. This count is drawn under section 35, c. 4, of the Acts of 1917. Acts 1917, p. 15. It has been held that this section does not define a public offense. Ward v. State (1919) 188 Ind. 606, 125 N. E. 397.

The third count of the affidavit charged appellant with unlawfully keeping intoxicating liquors with intent to sell, barter, exchange, and give the same away in violation of law.

As no conviction could be based on the second count, it must be assumed that the judgment of conviction rests on either the first or the third count of the affidavit.

The testimony on behalf of the state shows that on the date mentioned in the affidavit, two police officers of the city of Terre Haute saw appellant's automobile pass along the street and enter his garage, which was built in connection with the back part of his residence, with a door between. The officers followed the car and entered the garage two or three minutes after the car had been driven in; and when they so entered they found appellant and a man named Lyons near the car. In the car the officers found a case of whisky containing 46 half-pints, and also 20 bottles of beer and a quart of gin. Appellant admitted in his evidence that the automobile in which the liquor was found belonged to him. After the discovery of liquor by the officers appellant broke open the case containing the whisky, and took out a half pint bottle. He took a drink out of the bottle and handed it Lyons, who took a drink and handed it back. After appellant and Lyons had finished drinking the whisky contained in the bottle, it was thrown down, and was picked up by the officers, who arrested appellant and took him and the liquor to police headquarters. Some conversation occurred between appellant and the officers at the time of the arrest and prior thereto, which is not set out for the reason that it throws no light on the material issues involved.

Appellant in his testimony explained the presence of liquor in his car by saying that, earlier in the evening, he had let the automobile in question to one William Ross for hire for two hours at the price of $2. He stated that Ross took the car out of the garage, and that he brought it back just before the officers came. He stated that he was waiting in the garage for Ross to bring the car back, and that when he drove in and got out of the car the police followed him in, and he went out of another door. Appellant testified that...