Wrassman v. State

• Citation: 191 Ind. 399,132 N.E. 673
• Decision Date: 18 November 1921
• Docket Number: No. 23977.,23977.
• Parties: WRASSMAN v. STATE.
• Court: Supreme Court of Indiana

191 Ind. 399

132 N.E. 673

WRASSMAN

v.STATE.

No. 23977.

Supreme Court of Indiana.

Nov. 18, 1921.

Appeal from Criminal Court, Marion County; Fremont Alford, Special Judge.

George Wrassman was convicted of violating the prohibition law, and appeals. Affirmed.

Robbins & Weyl, of Indianapolis, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. E. F. White, Deputy Atty. Gen., for the State.

TOWNSEND, C. J.

Appellant was tried by court and convicted of violating the Prohibition Law. Acts 1917, p. 15. One count of the affidavit charged appellant with keeping intoxicating liquor with intent to sell. The affidavit was in several counts. The finding does not indicate on which count it is based. If the evidence is sufficient on any count, it must be on the one referred to above.

In brief, the evidence is: As three police officers of Indianapolis drove in an automobile in front of a pool room on the south side of East Washington street, they saw appellant leave the front of the room and go rather hurriedly to a small room in the rear. Thy went into the pool room at once and followed appellant, whom they met coming from the rear room. One of the officers had observed appellant in a stooping posture near some boxes in this rear room. This officer went directly to these boxes and found two warm bottles of whisky in plain sight on top of one of them. No one else had been in this rear room immediately before. Appellant was neither the proprietor of the place nor an employé therein.

Now the question is whether this evidence is sufficient to sustain the conviction. Appellant relies on the case of Cavender v. State, 126 Ind. 47, 25 N. E. 875, wherein it was said:

“The true test by which to determine the value of circumstantial evidence, in respect to its sufficiency to warrant a conviction in a criminal case, is, not whether the proof establishes circumstances which are consistent, or which coincide with the hypothesis of the guilt of the accused, but whether the circumstances, satisfactorily established, are of so conclusive a character, and point so surely and unerringly to the guilt of the accused as to exclude every reasonable hypothesis of his innocence. The force of circumstantial evidence being exclusive in its character, the mere coincidence of a given number of circumstances with the hypothesis of guilt, or that they would account for, or concur with, or render probable the guilt of the accused, is not a reliable or admissible test, unless the circumstances rise to such a degree of cogency and force as, in the order of natural causes and effect, to exclude, to a moral certainty, every other hypothesis except the single one of guilt.”

[1] Appellant also says that this language was approved in the very recent case of Robinson v. State, 188 Ind. 467, 124 N. E. 489. Appellant also relies on Hamilton v. State, 142 Ind. 276, 41 N. E. 588, wherein language was used similar in effect to that of Cavender v. State, supra. If the language used by Judge Mitchell in the Cavender Case was intended to convey the impression that where there are two reasonable hypotheses arising from circumstantial evidence, one of which is innocence and the other guilt, that it is the duty of a court of review to draw the inference of innocence, then this language must be disapproved. If it is meant to be a pronouncement of the law which should govern juries and trial courts, then it is approved.

So far as Hamilton v. State, supra, is concerned, it was expressly overruled, on this point in Lee v. State, 156 Ind. 541, at page 549, 60 N. E. 299. We think that a careful examination of both the Cavender Case and the Hamilton Case will disclose that this court had before it and was considering a complete lack of one essential link in the chain of circumstances, from which the...