151 N.E. 689 | Ind. | 1926
In an indictment returned by the grand jury of Delaware county, it was charged that the appellant, on or about December 7, 1924, did unlawfully barter, sell, give away, exchange, furnish and dispose of intoxicating liquor to a person therein named, in violation of § 1, ch. 23, Acts of 1923. He was tried by a jury and found guilty. He assigns as error the overruling of his motion for a new trial.
One of the causes for a new trial was that the court erred in overruling the challenge of the defendant to the competency of Margaret Goddard to serve as a juror in the trial of the 1. cause. The objection relied upon was that said prospective juror *641
was a woman and was not qualified to serve as a juror because of her sex. All the questions raised by appellant on this subject were decided by this court in Palmer v. State (1926), ante
625,
Appellant excepted to the giving of instruction No. 4 to the jury which was as follows: "The material allegations of the indictment are the unlawful bartering, selling, giving 2. away, exchanging, furnishing or disposing of intoxicating liquor to Sherman G. Parton in Delaware Co., Indiana, on the 7th day of December, 1924, and the court instructs you that before the defendant can be found guilty of any offense under this statute and as charged in this indictment, the state must prove some one or more of the material allegations of the indictment above set out beyond a reasonable doubt. Proof of a sale of intoxicating liquor in violation of this statute is sufficient to sustain a conviction." This instruction was erroneous, as it was necessary for the state to prove all the material allegations of the indictment, essential to make out one complete offense. In each of two other instructions given by the court the law on this subject was correctly stated. An erroneous instruction to the jury in a criminal action is not corrected by another which stated the law correctly, unless the erroneous one be plainly withdrawn. Howard v. State (1875),
The judgment is reversed, with instructions to sustain appellant's motion for a new trial.