150 N.E. 56 | Ind. | 1926
In this case, appellant was found guilty of unlawfully selling intoxicating liquor, in violation of § 1 of ch. 23 of the Acts of 1923, after a trial by the court, without a jury. She has appealed from the judgment rendered, claiming that the court erred in overruling her motion for a new trial. The grounds therein set forth upon which she relies being, that the verdict (finding) of the court is contrary to law, and that the verdict (finding) is not sustained by sufficient evidence.
Two witnesses testified as follows: That they visited appellant's residence, on or about December 6, 1924, at No. 849 Adams street, in Gary, Indiana; that while there they purchased two drinks of intoxicating liquor from appellant, paying one dollar for same, which liquor was served through a window at the rear of her *171 residence. That they did not see appellant's husband there. That as soon as these witnesses got the liquor, two constables rushed into the house, and later in the day, they saw the constables bring appellant's husband into court. Appellant testified that on said day she lived at the place named; that she did not sell intoxicating liquor to the state's witnesses; that four constables came to the house; that two of them made a search but did not find any liquor; and that her husband was there. On rebuttal, the state called the husband of appellant as a witness. He testified that he did not know that his wife sold any intoxicating liquor in her home on or about December 6, 1924; that he did not know that she handled any intoxicating liquor in her home; that he did not work on said day; that his wife did not sell any moonshine whisky; that he did not tell her or order her to sell any moonshine whisky or intoxicating liquor; and that when the constables searched the house on that day, he had just come from upstairs.
Appellant seeks a reversal on the sole theory that the evidence was insufficient to sustain the finding and, therefore, the finding was contrary to law. It is claimed that as appellant was a married woman, the presumption is that she acted under the coercion and compulsion of her husband, who was in the house at the time. And it is insisted that there is no evidence in the record to rebut this presumption.
Under the common law, which has not been changed by statute in this state, when a married woman is indicted for a crime, excepting treason or murder, committed in the presence of 1. her husband, the presumption of law arises that she acted under his coercion, entitling her to a discharge, unless this presumption is rebutted. Caldwell v. State (1922),
In 1 Bishop, Criminal Law (9th ed.) § 359, it is stated: "The presence may exist though the two are not in the same room; but they must be near enough together for the wife to be 2-5. within the range of the husband's personal and present influence." This court in Caldwell v. State, supra,
quoted from Commonwealth v. Daley (1888),
The judgment is affirmed.