Opinion
No. 13,631.
Filed April 4, 1929. Rehearing denied June 28, 1929.
INTOXICATING LIQUORS — Unlawful Possession — Evidence Held Sufficient. — Whisky was found on premises occupied by defendant as a tenant, such liquor being in gallon cans, and about a dozen empty pint bottles were found near the house; a witness testified that he smelled the contents of the cans, which "smelled like grain alcohol," and that defendant said he was not able to work and he had to make a living. Held, that the evidence was sufficient to sustain a conviction of unlawful possession of intoxicating liquor.
From Monroe Circuit Court; Herbert A. Rundell, Judge.
Johnnie Fleetwood was convicted of having unlawful possession of intoxicating liquor, and he appealed. Affirmed. By the court in banc.
Miers Corr, for appellant.
Arthur L. Gilliom, Attorney-General, and Harry L. Gause, Deputy Attorney-General, for the State.
This was a prosecution by the State of Indiana against appellant on an affidavit charging him with the unlawful possession of intoxicating liquor. There was a trial by the court and a finding of guilty.
The only error assigned is the overruling of appellant's motion for a new trial, which motion was upon the grounds that: (1) The decision of the court is contrary to law; (2) the decision of the court is not sustained by sufficient evidence.
One Thomas Elgar testified: "I was deputized by Harvey Knight to go with him to the Nath Smith premises; we went down and searched. I was searching people driving in. I told them, `Let's go look at the spring,' and we wasn't there but a few minutes until we found whisky in gallon cans, not hidden, about 122 to 130 feet near the spring, setting in the corner of a fence; it smelled like whisky. They started towards the jail with the liquor."
Bert Chambers testified: "I was deputized by Harvey Knight to go with him to the Nath Smith premises; we went there and I helped to search the outside, that is the barn and lot; found two one-gallon cans, I would pronounce it `white mule' or alcohol, and about a dozen empty pint bottles, along a fence about 150 feet from the house. I smelled the contents, smelled like grain alcohol; two cars came into the premises; they got out of car and went into house, son-in-law and daughter of Mr. Barrett, I did not know he was in the other car. Fleetwood said he was not able to work and he had to make a living."
It was also shown in the evidence that the appellant was a tenant in possession of the premises upon which the intoxicating liquor was found.
This evidence was sufficient to support the decision of the court, and is therefore not contrary to law.
Judgment affirmed.