158 N.E. 241 | Ind. | 1927
Appellant was prosecuted on an affidavit in three counts, in which he was charged with unlawful possession of intoxicating liquor, unlawful sale of intoxicating liquor, and maintaining a common nuisance, in violation of §§ 4 and 24, ch. 48, Acts 1925. The trial was by the court without a jury. He was found guilty on each count and a judgment of fine and imprisonment was rendered against him for each offense. He has assigned as error the overruling of his motion for a new trial. *486
One of the causes for a new trial was that the court erred in overruling a motion to quash the affidavit. This cause cannot be considered, as it should have been presented as a separate 1. assignment of error.
A motion was filed by appellant to suppress and reject the evidence of two witnesses named therein. It is claimed that the court erred in overruling same. The record does not show 2. any ruling on this motion. In the absence of such ruling from the record, appellant cannot raise any question in regard to it.
It is stated that the court erred twice in permitting Roy 3. Hallipeter to give certain testimony. The record does not show that this party was a witness.
Another reason for a new trial was surprise which ordinary prudence could not have guarded against in regard to the evidence of Charles McMurray. This witness answered only two 4. questions. He testified that he was twenty years old and had not quit a named high school. Appellant could not have been harmed by this testimony.
The appellant insisted that the finding of the court was not sustained by sufficient evidence. And in connection therewith, he contended that the evidence was incompetent which showed that a pint of gin was sold by Charles McMurray, a clerk in appellant's drug store, when appellant was not present; as it was not shown that he consented, commanded, aided or abetted therein. InThompson v. State (1920),
The mere selling of intoxicating liquor by an agent is not sufficient to warrant a conviction of the principal, but if the circumstances are such that it may be inferred that the 5, 6. sale was made with the consent or knowledge of the principal, then he is equally guilty with the agent, and may be criminally liable. In re Souza (1923),
In the instant case, part of the evidence of one of the purchasers was as follows: "I leaned over the edge of the counter and asked Charles for a pint of gin. He said, `I don't know you.' I said, `I don't know you either. It is mutual.' He said, `Has Leo been selling you?' I said, `No sir, a man I saw.' I said, `I will wait until Leo comes back.' I asked what time he would be back and he said `About nine o'clock.' I looked at the clock. It was about nine-twenty and I called his attention *488 to it and he went over to the window and looked out and said, `I don't want to keep you waiting,' and he went and mixed up the gin and brought it out." He also testified that the clerk put the money in the cash register, and handed the purchaser his change. And, on cross-examination, he said the clerk mixed the gin in front of the witness. The evidence in regard to the sale of intoxicating liquor by the clerk was competent. There was also competent evidence that at the same place on December 3, 1925, the appellant made a sale of four drinks of gin and one-half pint of gin. It is not denied that the clerk made the sale of gin as charged in the affidavit, and that appellant made a sale of gin nine days previously. The conversation of the clerk indicated that appellant had been making sales of liquor. The sale by the clerk was openly made. It may be inferred that as appellant was the owner of the drug store, and from other circumstances, that he was the owner of the gin which the clerk sold.
In Ferry v. United States, supra, the court said that the money paid for the liquor was placed in the cash register, and presumably that registered money eventually reached the 7-9. appellant, who was the proprietor. From the facts in evidence, the complicity of the appellant in the sale by the clerk may be rightly and reasonably inferred. The affidavit charged that the three offenses were committed on December 26, 1925. The affidavit was executed and filed on December 28, 1925. The sale of intoxicating liquor made by the clerk was on December 12, 1925. There was no evidence that a sale was made on December 26. Time is not of the essence of the offense charged, except that the time of the charge of the offense must be before the presentment of the affidavit and within the statute of limitations. Terrell v. State (1905),
Under appellant's points and authorities, several matters are presented which are not covered by his motion for a new trial. Same cannot be considered. The ruling of the court on the 10. motion for a new trial was not erroneous.
Judgment affirmed.
