Opinion
No. 25,555.
Filed October 24, 1928. Rehearing denied January 4, 1929.
1. CRIMINAL LAW — Credibility of Witnesses — When Determined by Trial Court. — On the trial of a criminal case by the court without a jury, the credibility of the witnesses is for the determination of the trial court. p. 459.
2. CRIMINAL LAW — Weighing Evidence on Appeal. — On appeal from a conviction for a criminal offense, the Supreme Court will not weigh the evidence. p. 459.
3. INTOXICATING LIQUORS — Selling — Evidence Sufficient to Convict. — Evidence held sufficient to sustain finding of trial court that defendant was guilty of unlawfully selling intoxicating liquor. p. 459.
4. CRIMINAL LAW — Failure to Call Witnesses — Presentation on Appeal. — The fact that police officers who had some knowledge of the transaction, out of which grew the charge of selling intoxicating liquor, were not called as witnesses will not be considered on appeal where the matter was not mentioned in the motion for a new trial. p. 460.
5. INTOXICATING LIQUOR — Charge of Selling — Finding of Guilty — Finding not Contrary to Law. — Trial court's finding that defendant was guilty of unlawfully selling intoxicating liquor held not contrary to law. p. 460.
From Marion Criminal Court (61,956); James A. Collins, Judge.
Tom Coger was convicted of unlawfully selling intoxicating liquor, and he appeals. Affirmed.
W.E. Henderson, for appellant.
Arthur L. Gilliom, Attorney-General, and Harry L. Gause, Deputy Attorney-General, for the State.
The appellant was prosecuted and found guilty of unlawfully selling intoxicating liquor to one John Pike, on June 14, 1927, in Marion County, State of Indiana. Judgment of fine and imprisonment was rendered on the finding.
On appeal, he has assigned as error the overruling of his motion for a new trial. The causes for a new trial now relied upon are that the finding of the court was not sustained by sufficient evidence and the finding of the court was contrary to law.
In his points and authorities, the appellant says that the mere whims of a child unsupported by any corroborating, direct or circumstantial evidence are not sufficient to convict 1-3. defendant of crime. An examination of the evidence shows that the prosecuting witness was seventeen years old and worked in a garage. He further testified that he bought intoxicating liquor, which was alcohol, of the defendant. The cause was tried by the court. When the case was tried by the court without a jury, the question of the credibility of a witness was a matter to be determined by the trial court. The appellant testified that he did not make the sale of intoxicating liquor, with which he was charged. This court, as it has stated numerous times, will not weigh the evidence. There was sufficient evidence to sustain the finding of the criminal court.
Appellant attempts to claim error because police officers who had some knowledge of the transaction in question did not testify. This matter was not mentioned in 4. the motion for a new trial and same cannot be considered.
It does not appear that the finding of the trial court 5. was contrary to law. It was not error to overrule the motion for a new trial.
The judgment is affirmed.