84 Ind. 562 | Ind. | 1882
In this case the indictment charged that the appellant, on the 17th day of March, 1882, at and in Union county, Indiana, unlawfully sold to' one Joseph Orr spiritous and intoxicating liquor, in a less quantity than a quart, to wit, oue gill of whiskey, at and for the price of ten cents, he, the appellant, not then and there having a license so to sell such liquor, contrary to the form of the statute, etc.
Upon appellant’s arraignment and plea of not guilty, the issues joined were tried by á jury, and a verdict was returned finding him guilty, as charged in the indictment, and assessing his punishment at a fine in the sum of $40. Over his motion for a new trial, and his exception saved, the court rendered judgment on the verdict. ,
The only error assigned by appellant is the overruling of his motion for a new trial. Under this error, his counsel earnestly insist that the verdict of the jury was not sustained by sufficient evidence. The following facts, it seems to us, were fairly established by the evidence in the record: The appellant lived in the village of Brownsville, in Union county, Indiana; his dwelling and business house,and out-buildings, were all under one roof; his business room was separated from his residence by a partition, reaching from the floor to the ceiling, in which there was neither door nor window; the residence was occupied by his family, consisting of himself and his wife, and his two grown step-children; in the business
There was other evidence of the sales of whiskey, in less quantities than a quart at a time, to other persons in the same manner, in appellant’s business room; but in no case did the parties see or know the person who sold or furnished the whiskey to them.
It is claimed by appellant’s counsel, that this evidence does not show, beyond a reasonable doubt, that the appellant sold the whiskey to Joseph Orr, as charged in the indictment, and that, therefore, it did not authorize the jury to return a verdict of guilty. We are of the opinion, however, that the jury were fully authorized and justified by the evidence, in finding that the sale of the whiskey to Orr was made.by the appellant, or by his authority and under his direction, and, in either event, that he was guilty of the offence charged in the indictment.
It is shown by a bill of exceptions properly in the record, that the prosecuting attorney, in his opening argument to the
In the fourth clause of section 1798, R. S. 1881, declaring what persons are competent witnesses, in criminal cases, it is provided as follows: “Fourth. The defendant, to testify in his own behalf. But if the defendant do not testify, his failure to do so shall not be commented upon or referred to in the argument of the cause, nor commented upon, referred to, or in any manner considered by the jury trying the same; and it shall be the duty of the court, in such case, in its charge, to instruct the jury as to their duty under the provisions of this section.”
This clause of the statute is a substantial re-enactment of the fourth clause of section 90 of the criminal code of 1852, as the section was amended by the act of March 10th, 1873.
The case cited is decisive of the question now under consideration, in favor of the appellant; for, in the case at bar, the language of the prosecuting attorney was a more direct and palpable violation of the letter and spirit of the statute than the language which, in the case cited, was held to constitute a good and sufficient cause for a new trial. We need not comment on the language complained of in this case, further than to say that it constituted such an error of law, we think, as could not be cured by the court’s subsequent charge to the j ury, that “ the fact that defendant did not testify could not be taken into consideration.” Morrison v. State, 76 Ind. 335, 338.
The court erred in overruling the motion for a new trial.
The judgment is reversed, and the cause is remanded with instructions to sustain the motion for a new trial, and for further proceedings.