152 N.E. 166 | Ind. | 1926
Appellant was prosecuted on an affidavit in which he was charged with having in his possession intoxicating liquor in Vanderburgh county, on May 23, 1925. The affidavit was 1. predicated on § 4, ch. 48 of the Acts of 1925, the title to which is "An Act concerning intoxicating liquors." He was found guilty and has appealed from the judgment of fine and imprisonment. Errors relied upon for reversal are: (1) The court erred in overruling the motion for a new trial; (2) the court erred in overruling the motion in arrest of judgment; (3) the judgment is erroneous and void for the reason that the statute upon which the judgment rests is void because of indefiniteness and being too vague; and (4) the judgment is erroneous and void for the reason that the statute upon which the judgment rests is unconstitutional. The third and fourth specifications of error are not proper assignments. However, the alleged errors therein named were presented by appellant in his motion in arrest of judgment.
The first cause in the motion for a new trial is that the finding of the court is contrary to law, because there is no evidence to sustain same. From the evidence, *286
it appears as follows: Police officers, who had a search 2. warrant, searched appellant's residence in the city of Evansville and found fifty-three quarts of home-brew beer in bottles, each bottle wrapped in paper, and four quarts of iced beer in bottles in the icebox. Appellant admitted to the officers that he owned the beer. A witness who was a sergeant on the police force of said city testified that the beer so found was intoxicating liquor, and he further testified from his experience as an officer for many years with home-brew beer, that same contains more than one-half of one per cent. of alcohol by volume. No contrary evidence was introduced by the defendant. Proof that the liquid in question was intoxicating liquor or that it contained as much as one-half of one per cent. of alcohol by volume was sufficient to sustain the charge. Hiatt v. State
(1920),
Appellant's second cause in his motion for a new trial is as follows: "The judgment of the court is contrary to the evidence." This specification is not a statutory reason for a new 3. trial. § 2325 Burns 1926.
Objection was made by appellant when the court permitted a witness to taste and smell the beer during the trial in order to give testimony whether same contained as much as 4, 5. one-half of one per cent. of alcohol by volume. The witness had testified that he was familiar with home-brew beer, and that *287 after such beer was put in bottles and capped, the amount of alcohol therein did not change. The evidence was competent and the court did not err in refusing to strike out same and in refusing to strike out evidence as to alcoholic content of the beer because same had not been tested by a duly qualified chemist. Appellant has failed to show that he was entitled to a new trial.
Error is claimed in overruling appellant's motion in arrest of judgment. It is contended that the facts stated in the affidavit do not constitute a public offense, and that the law 6, 7. under which the affidavit was drawn is unconstitutional and void. Appellant argues that the possession of intoxicating liquor cannot be made an offense and relies uponBeebe v. State (1855),
The judgment is affirmed.