Dilly v. State
154 N.E. 865
Ind.
1927
Check Treatment
Gemmill, C. J,

Thе appellant has appealed from a judgment of fine and imprisonment rendered against him in the criminal court of Marion county for the unlawful possession of intoxicating liquor, on or about September 21, 1925. Said public offense is defined in §4, ch. 48, acts ‍‌​​​​​​​​​‌‌​‌‌​​‌​​​‌​‌​‌​​​‌​​‌‌​​​‌​‌​‌‌‌‌‌‌​‍of 1925, §2717 Burns 1926. The only assignment of error presented is that the court erred in overruling the motion for a new trial. And under that motion, the only question to be considered is the sufficiency of the evidence to sustаin the finding of the court.

The undisputed evidencе was as follows: Two police officers observed appellant coming out оf a vacant house near his home in the сity of Indianapolis, at night. Appellant, when he saw the officers, dropped a quart bottle of white mule whisky and he was then arrested. Whеn the bottle was broken, they smelled the odor ‍‌​​​​​​​​​‌‌​‌‌​​‌​​​‌​‌​‌​​​‌​​‌‌​​​‌​‌​‌‌‌‌‌‌​‍of white mule whisky, but did not see any liquid. It was only by the smell of same that they knew what it was. One of the officers then went into the vacant house, out оf which appellant had come, and found there one gallon of white mule whisky, ten emрty one-half pint bottles and a bag of corks to fit the bottles.

This court has held that intoxicаting liquor may ‍‌​​​​​​​​​‌‌​‌‌​​‌​​​‌​‌​‌​​​‌​​‌‌​​​‌​‌​‌‌‌‌‌‌​‍be identified as such by the- smell of same. Dillon v. State (1919), 188 Ind. 603, 125 N. E. 37; Zoller v. State (1920), 189 Ind. 114, 126 N. E. 1; Shelton v. State (1921), 191 Ind. 228, 132 N. E. 594; Stankiewoecz v. State (1924), 194 Ind. 246, 142 N. E. 615. In United States v. Borkowski (1920), 268 Fed. 408, it was said: “If an officer may arrest ‍‌​​​​​​​​​‌‌​‌‌​​‌​​​‌​‌​‌​​​‌​​‌‌​​​‌​‌​‌‌‌‌‌‌​‍when he actually sees the com *160 mission of a misdemeanor or a felony, why may he not do the sаme, if the sense of smell informs him that a crime is being committed? ‍‌​​​​​​​​​‌‌​‌‌​​‌​​​‌​‌​‌​​​‌​​‌‌​​​‌​‌​‌‌‌‌‌‌​‍Sight is but one of the senses, and an officer may be so trained that the sense оf smell is as unerring as the sense of sight.”

The proоf was sufficient to show that the bottle which appellant dropped contained intoxicating liquor. Appellant’s suggestion that the odor might have come from an empty bottlе, which had contained whisky cannot be adopted. Prom the evidence in regard to thе. whisky which was found in the vacant house and the evidence that appellant had just left thаt place carrying a bottle which he drоpped which had the odor of white mule whisky, it сould legitimately and reasonably be inferrеd by the court that the white mule whisky there found was in his рossession. Evidence that liquor was white mule whisky wаs sufficient to establish that it was intoxicating liquor, as the court has judicial knowledge that whisky is an intoxicating liquor. Hogan v. State (1921), 191 Ind. 675, 133 N. E. 1; Stankiewoecz v. State, supra. The motion for a new trial was properly overruled.

The judgment is affirmed.