36 Ind. App. 179 | Ind. Ct. App. | 1905
Upon affidavit and information based upon §7283c Burns 1901, Acts 1895, p. 248, §3, appellant (who has no other Christian name), a retail liquor dealer, was tried and convicted in the court below of permitting William Hall to go into a room kept by appellant for the sale of intoxicating liquors, and at a time when the sale of such liquors was prohibited by law, said Hall not being a, member of appellant’s family. Erom a judgment against appellant he prosecutes this appeal, and assigns as error: (1) The overruling of his motion to quash the affidavit and information.
Appellant insists that this case comes clearly within the cases of Wilson v. State (1898), 19 Ind. App. 389, and Rosenbaum v. State (1900), 21 Ind. App. 510. This court in deciding the case of Wilson v. State, supra, found that there was absolutely no evidence that Wilson permitted his bartender to go into the saloon, or knew he was there, or in any way assented to his being in there during prohibited hours. “On the contrary, the uncontradicted, unimpeached evidence is to the effect that appellant did all he could reasonably be expected to do to prevent the violation of the law at his place of businessthat Wilson was not in the city where his business was located, and had not been for more than a month prior thereto. Under, substantially this state of facts, this court held, as a matter of law, that Wilson was not guilty, and reversed the case.
In the case of Rosenbaum v. State, supra, the proprietor of the saloon was indicted and convicted of selling intoxicating liquors on Sunday. Upon the trial it appeared that the liquor was sold by a bartender from a cold storage room belonging to Rosenbaum, and not in the room where he was engaged in business, and that his bartender had no key or means of ingress into the room where the business was carried on, and that Rosenbaum had no knowledge of such sale, nor did he consent thereto, and the sale was made in violation of his instructions to the bartender not to sell liquor on Sunday, under penalty of discharge.
The Wilson and Rosenbaum cases rest upon the theory that there was no evidence whatever from •which an inference could be drawn tending to show a permit or consent by the principal to his agent or servant to do the un
The rule here applicable is aptly stated, and supported by authority, that “Where the defense is that the agent violated a direction or instruction requiring him not to make such sales, it must be shown that the order was given honestly and in good faith, and with the intention and expectation that it would be obeyed; and the question, whether or not the order was so given, is for the jury to determine.” Black, Intox. Liq., §369.
So in this case, if the order of appellant to Hall to stay out of the room during prohibited hours was given in good faith and with the intention and expectation that it should be obeyed, and it was not obeyed, a conviction ought not to stand; but under the settled rules of law in this State this court is not authorized to disturb the-judgment of the lower court based upon a verdict of a jury, unless the question presented is purely a question of law; and a question of law on the sufficiency of the evidence only arises where there is no evidence to support a fact essential to the xxpholding of the verdict. If there is any properly admitted evidence before the jxxry from which inferences might be drawn to sustain their verdict, the question’ then becomes one of fact, and within the exclusive control of the trial court, and is not within the province of this court at all.. Smith v. State (1900), 24 Ind. App. 417; Schnuer v.
Judgment affirmed.