Wood v. State

• Decision Date: 11 October 1934
• Docket Number: 26133
• Citation: 192 N.E. 257,207 Ind. 235
• Parties: WOOD v. STATE
• Court: Indiana Supreme Court

192 N.E. 257

207 Ind. 235

WOOD v. STATE

No. 26133

Supreme Court of Indiana

October 11, 1934

INTOXICATING LIQUORS---Possession of Still---Evidence Held Insufficient.---Where a still and mash were found in a basement under a garage, accessible only by way of a trap door in a connected toilet and through a tunnel leading to a junk pile, evidence that defendant, a woman of 77 years living in the house on the premises, used the toilet in common with others and that pieces of orange were found in the mash and orange peelings in her chicken yard held insufficient to warrant submission to the jury.

Sarah B. Wood was convicted of unlawful possession of a still, and she appealed. Reversed.

Cheney & Tolen, of Shelbyville, for appellant.

James M. Ogden, Atty. Gen., and Merl M. Wall, Asst. Atty. Gen., for the State.

OPINION

HUGHES, Chief Justice.

The appellant, together with Caldonia Price and Dale Hendricks were jointly charged by affidavit in the Shelby circuit court on a charge of violating the liquor law of the state (Burns' Ann. St 1926, § 2709 et seq.). There were two counts in the affidavit: One count for unlawfully manufacturing intoxicating liquor; and the other for the unlawful possession of a still and distilling apparatus.

There was a plea of not guilty by all three, and a jury trial. The defendants Caldonia Price and Dale Hendricks were acquitted upon a peremptory instruction by the court. The appellant was convicted on the second count, and fined $ 100, and sentenced to the Indiana Women's Prison for a period of not less than one nor more than five years.

The errors relied upon for a reversal are as follows: The trial court erred in overruling appellant's motion for a new trial. In her motion for a new trial she sets out three reasons as follows: (1) The court erred in refusing to grant her motion for a peremptory instruction to the jury to return a verdict of acquittal; (2) that the verdict is contrary to law; and (3) that the verdict is not sustained by sufficient evidence.

The affidavit against the appellant was filed in the Shelby circuit court on January 8, 1931, and the trial was had on March 30, 1931. The evidence shows that the appellant was seventy-seven years of age at that time, and lived near the city of Shelbyville, in a house owned by one Adam Dill. About three hundred feet from the house was a garage also owned by Mr. Dill. Attached to and a part of the garage was a toilet house which was used by the appellant and others. There was a seat in the toilet that was so made and arranged than when lifted up an entrance was open to a basement under the garage. In this basement the sheriff and his deputies found a still, seven barrels of mash, jars, judges, bottles, caps, and coal oil lamps. There was a tunnel made out of oil barrels running from the basement out and under a junk pile. The tunnel was large enough for a 200-pound man to enter.

The premises were searched under a search warrant.

There was nothing in the garage except two automobiles, neither of which was owned by the appellant, and there was no way to reach the basement under the garage from the garage. The evidence shows that the appellant had no control over the garage, and that the owner, Mr. Dill, had stated to her he would not rent the garage. The evidence does show that the appellant had the key to the garage, but it also shows that Dill had a saw of the appellant which he had been using in the garage, and he gave the key to appellant for the purpose of getting the saw. There is no evidence to show that the appellant used or had any control whatsoever over the garage.

In the basement under the garage where the still and mash were found there were pieces of oranges found in the mash, and in the chicken lot of the appellant there were also found the peelings of oranges. This evidence apparently carried considerable weight with the jury. The house in which the appellant lived was also searched, and no liquor of any kind or still was found. It also appears from the evidence that in 1929 the appellant was convicted on a charge of having unlawful possession of intoxicating liquor.

It...