174 Ind. 734 | Ind. | 1910
Appellant was indicted by a grand jury of Dekalb county, upon the charge of having violated section one of an act entitled “An act to better regulate the sale of intoxicating” liquors, etc. (Acts 1907 p. 689, §8351 Burns 1908.) The offense, as charged in the indictment, is that appellant, on March 6, 1909, at Dekalb county, Indiana, did unlawfully sell to Herman Newman, for the price 'of $1, twelve quarts of intoxicating liquor, to wit, beer; he not then and there being licensed so to do. The exceptions made by the provisos of the section in question — “that none of the provisions of this act shall apply to any person, firm or corporation engaged as a wholesale dealer who does not sell in less quantities than five gallons at a time and provided that none of the provisions of this section shall apply to any druggist or pharmacist who is licensed as such by the state board of pharmacy” — were negatived in the indictment.
Appellant unsuccessfully moved to quash the indictment, and upon his plea of not guilty he was tried by a jury and a verdict returned finding him guilty as charged, and assess
On this point the record presents no reversible error, as it is not disclosed that he was compelled to accept the jury, and go to trial before it with some juror thereon whom he would have peremptorily challenged, but was prevented from doing so by the ruling of the court, of which he complains. It does not appear by the record that he was in any manner deprived of an opportunity to interpose any peremptory challenge in respect to some member of the jury. Under the circumstances, there was no error in the ruling in question. McDonald v. State (1909), 172 Ind. 393.
"Were it conceded that the attorney for the State, in making the statements of which appellant complains, transgressed the bounds of legal argument, still the statements cannot be said to be of such importance as to afford appellant ground for reversible error, for as said in the case of (Joints v. State (1881), 75 Ind. 215: “If every immaterial assertion or statement which creeps into an argument were
On January 23, 1909, he Avent to the home of Herman NeAvman, the prosecuting witness, Avho resided in the town of Garrett, and solicited from Mrs. Newman, Avife of Herman Newman, an order to the Diehl Brewing Company for a certain number of cases of beer. He had with him at the time blank orders for beer, Avith AAihich it appears he had been supplied by the Diehl Brewing Company. He requested Mrs. NeAvman to sign the order. After she signed it he placed it in an envelope and mailed it at the post-office
“No. 815 January 23, 1909.
To the Christ Diehl Brewing Company,
Defiance, Ohio.
Gentlemen: You will please enter my order for and deliver to me as needed the following goods: [Here the number of cases of beer is set out.]
Yours very truly,
Mrs. H. Newman.”
Beneath her name on the order appears the following:
“Order taken by George Sehondel, salesman.”
There were six eases of beer shipped to Newman, and about 250 eases in all shipped by the company in the same carload to other persons. The beer was all consigned by the brewing company to itself at Garrett, Indiana, but the eases intended for the different persons were labeled in their names. The orders sent to the brewing company, after being approved by it, were sent to appellant, and he kept them on file until the beer shipped to various persons was consumed. Herman Newman testified that he received some beer from the Diehl Brewing Company on March. 30; that he had not made out the order for the beer, but that it was made out by his wife; that prior to March 6, 1909, he had not signed any order or directed appellant to deliver to him any beer; that he was to pay $1 for twelve bottles of beer, and did pay appellant $1 for the beer which he delivered to him on March G. Appellant testified that he did not know whether the brewing company had accepted the order which he had sent in for Sirs. Newman until the company had shipped him, as he stated, the carload of beer; that he delivered twelve bottles of this beer to Herman Newman on or about March 6, and that Newman paid him for all his beer $3 and $4 at a time, and that after he collected the money he sent it to the Diehl Brewing Company; that he took possession of the beer after it had been shipped and consigned to the brewing com
In addition to what we have set out there are other circumstances and evidence in the case tending to show that appellant sold and delivered the beer for the price stated to Her-, man Newman at the town of Garrett, Dekalb county, Indiana, on or about the date charged in the indictment. It does not appear that any beer was shipped to Mrs. Newman by the brewing company in pursuance of the order which she sent. In fact, appellant, upon cross-examination on the witness-stand, virtually admitted that the beer- in question was not sold upon the order signed by Mrs. Newman; that it was not consigned to Mr. Newman, and that he (appellant) neither had nor was it necessary for him to have any order from Mr. Newman to the railroad company to deliver the beer over to him (appellant). The order signed by Mrs. Newman, as shown, was dated January 23, 1909, but she claimed upon the -witness-stand that it was signed sometime in March of that year. Mr. Newman stated that he had given an order to the railroad company in respect to the beer, after appellant had been indicted in this case.
No available error being presented, the judgment is therefore affirmed.