171 Ind. 642 | Ind. | 1909
Appellant was convicted of selling intoxicating liquor as a druggist to one known to him to be in the habit of using such liquors as a beverage. The overruling of his motion for a new trial is assigned as error. The motion for a new trial charges error' in the admission of certain testimony, and that the finding of the court is not sustained by sufficient evidence and is contrary to law.
“In my opinion the above-named applicant desires the liquor for the purpose above mentioned.
Horace Strickland, druggist.”
Across the face, written in ink, was the word “cancelled.” This record the law required to be made as a part of the res gestae, and, taken in connection with the oral confession to Peacock, was sufficient to establish the fact of a sale.
There was evidence that E. G. Wilson and Edward G. Wilson was one and the same person, and that he was in the habit of using intoxicating liquors as a beverage, which fact was apparent from his appearance, talk and manner, and from the odor on his breath, and that prior to the date of this alleged sale he had been convicted before a justice of peace of public intoxication.
the transaction occurred in Gibson county. After the witness Peacock had testified that he was marshal of Owensville, and was acquainted with appellant and E. G. Wilson, and had detailed the conversation with appellant concerning the sale of liquor to Wilson, the prosecuting attorney propounded the question: “All this occurred in Gibsbn county, Indiana, did it?” to which he answered: “Yes, sir.” It is doubtless true that, grammatically speaking, “all this” might relate only to the acts of the witness given in evidence; but 'the venue of an offense is seldom controverted, and the leading form of the question is suggestive of the common mode in which such proof is frequently made. The pertinence and materiality of the inquiry as to place is naturally explained by connecting it with the unlawful act charged against appellant. The- learned and experienced trial judge evidently assumed that this inquiry was intended to cover and did cover the transaction under consideration, and, if so, the venue was specifically proved. We cannot disturb the finding on this account. No error having been made to appear, the judgment is affirmed.