Robinson v. State , 197 Ind. 148 ( 1925 )

The indictment charged that, at a time and place named, the defendant (appellant) "did then and there feloniously and unlawfully sell, barter, exchange, give away, furnish and dispose of intoxicating liquor to Sherman G. Parton, contrary," etc., and that theretofore, on two dates specified, the defendant was convicted of "violating the provisions of chapter 4, Acts * * * 1917, and amendments thereto, commonly known as the ``prohibition law,'" the title of which was also recited. On motion of the prosecuting attorney, all the allegations in the indictment as to former convictions and the description of the act for the violation of which defendant was alleged to have been theretofore convicted were struck out. Defendant, having entered a plea of not guilty, was tried by a jury, which returned a verdict finding him "guilty as charged," and assessing his punishment at a fine of $500 and imprisonment in the county jail for six months. A motion for a new trial was made and overruled, and the court rendered judgment on the verdict. Overruling the motion for a new trial is assigned as error, under which appellant specifies the giving of each of certain instructions, the exclusion of certain evidence, and that the verdict is not sustained by sufficient evidence.

There was evidence that a witness with whom defendant was not acquainted met defendant, when defendant said he could get him some liquor "if the party was at home"; that defendant was 1. unable at that time to get into "the house" where defendant's brother-in-law lived, but that, later in the evening, when the witness returned, he found defendant in the house and "got the liquor off of him" there; that he bought a half-pint and paid defendant $1 for it, and that he turned the half-pint of liquor over to the sheriff of Delaware county about two hours later that same evening; that defendant said it was "grain alcohol cut," which is intoxicating liquor; that all this occurred at "911 South Mulberry street here in the city of Muncie"; that said street number is in Delaware county in the State of Indiana; that the bottle of liquor was sealed and labeled immediately at the sheriff's office, and remained in the possession of the sheriff, unopened, until the time of the trial, when it was introduced in evidence; that its contents were "grain alcohol cut with water," and it was intoxicating liquor. Defendant testified that when the prosecuting witness "said he wanted to get some stuff," defendant asked how much he wanted, and being told he wanted to get a pint or a quart, said to him that he (defendant) "knew several of the boys around" and would "see if he could find him somebody," but was unable to find anybody and then told the prosecuting witness that he (defendant) "don't fool with any stuff at all," and that said witness afterward exhibited a bottle of grain alcohol which he said he got elsewhere. Defendant testified that the contents of the bottle introduced in evidence was "grain alcohol," and a druggist called by him as a witness testified to the same fact, and there was no evidence that the bottle contained anything else, except as above stated. The verdict was supported by sufficient evidence and was not contrary to law.

Instruction No. 1, given by the court, correctly stated what were the allegations of the indictment down to and including the words "contrary to the form of the statute in such cases 2. made and provided and against the peace and dignity of the state of Indiana," and then added (Our italics): "Thecourt instructs you that there are some other words and wordingsto this indictment, but the other part of it has been dismissed, and you are to stop where it says contrary tothe form of the statute in such cases made and provided andagainst the peace and dignity of the state of Indiana, and theother part of the indictment is not to be considered by the juryat all." And instruction No. 2 told the jury that this indictment was founded upon § 1, ch. 23, Acts 1923 p. 70, which the instruction then recited in full, including the provision therein that any person guilty of the forbidden acts should be punished "upon a second or subsequent conviction by imprisonment in the state prison not less than one year nor more than two years, to which may be added a fine not less than $200.00 nor more than $1000.00." Appellant complains of these instructions as being uncertain, confusing and conflicting, leaving the jury in doubt as to the offense for which defendant was on trial. But the jurors were correctly told that if the defendant should be found guilty as charged in the indictment, they should also fix his punishment at a fine of not less than $100 nor more than $500, and imprisonment in the county jail not less than thirty days nor more than six months, and a verdict was returned in conformity with this direction. So that the record affirmatively shows that the jury was not misled by the references in these instructions to the infliction of greater punishment for a second or subsequent offense, and any inaccuracies in them are thus shown to have been harmless.

Appellant insists that instruction No. 3 stated merely an abstract proposition of law. But he impliedly admits that the law was correctly declared, and does not point out wherein he 3. was or could be harmed by giving it. Correctly declaring an abstract proposition of law is not reversible error unless the defendant was thereby prejudiced.

All of the evidence, including the evidence of defendant and his witness, being to the effect that the contents of the bottle which defendant was charged with having sold 4. were principally, if not wholly, grain alcohol, the only dispute being as to whether or not defendant sold it or the prosecuting witness obtained it elsewhere and then exhibited it to defendant, and the uncontradicted evidence as well as the judicial knowledge of the court establishing, beyond doubt, that grain alcohol is intoxicating, the defendant was not harmed by an instruction that the jury should find him guilty if they found that he "sold to Sherman G. Parton for $2.00 or any amount, intoxicating liquor, and that it was grain alcohol or grain alcohol cut." Such an instruction required them to find that what was sold was intoxicating liquor in order to convict, and if they so found the mere fact that it was not pure grain alcohol, but had been "cut with water," would not make defendant any less guilty.

Instruction No. 14 given by the court merely admonished the jury of the importance of not convicting a person accused of crime if he were innocent, and of not acquitting him if he 5. were guilty. It contained nothing for which the judgment should be reversed. Hinshaw v. State (1897),147 Ind. 334, 385, 47 N.E. 157; Hoover v. State (1903), 161 Ind. 348, 355, 68 N.E. 591; Scherer v. State (1919), 188 Ind. 14, 21, 121 N.E. 369; Partlow v. State (1920), 191 Ind. 660, 663, 128 N.E. 436.

The court permitted a cross-examination of the prosecuting witness more than twice as long as his direct examination, that went into almost every phase of his life, including the 6, 7. number of times he had been married, the fact that he had been divorced, that he occasionally drank whisky, and that he had no idea how many drinks he had taken on any one day while in Muncie; and defendant even obtained from him an answer that he had never been arrested, no objection being made to the question in response to which it was given. Being asked if he was in the army and in what outfit, he answered that he was in the Tenth Infantry. Counsel for defendant then asked: "You are the same man in the 10th infantry who was tried, and court martialed and sentenced to Fort Leavenworth, aren't you, for insubordination," when an objection was sustained to the question, and defendant excepted. Sustaining this objection is complained of as error. The question was open to objection as being multifarious, calling for a single answer as to whether the witness was "court martialed," "tried," and "sentenced," whether it was on a charge of insubordination, and whether the sentence was "to Fort Leavenworth." And since it had no relation to the facts testified in chief by the witness, but went only to his credibility, we cannot say that his conviction by a court martial on the charge of "insubordination," even if the fact were proved, would necessarily have such a bearing on his credibility as to make the exclusion of evidence of that fact when inquired about by proper questions asked in proper sequence an abuse of the very wide discretion which the trial court has over the extent to which a cross-examination shall be carried.Pierson v. State (1919), 188 Ind. 239, 245, 123 N.E. 118.

This witness had testified in chief that he paid $2 for the half-pint of whisky which he said he purchased from defendant, and on cross-examination again stated that he paid $2. 8. Counsel for defendant then asked a question to which an objection was sustained, and immediately afterward asked: "Is that the price you paid for it?" No error was committed in sustaining an objection to this question. The trial court is not bound to permit the same fact to be testified over and over, but may confine the cross-examination within reasonable limits. Clevenger v. State (1924),195 Ind. 45, 144 N.E. 524, 526.

No evidence was introduced nor offered to the effect that the alcohol was purchased with money which did not belong to the prosecuting witness, or that he obtained it from anybody 9. else, nor had he been asked any questions in relation thereto, and there had been no intimation from any source that the witness had received money for the purpose of influencing his testimony, when counsel for defendant asked him, on cross-examination, the following question: "Who gave you the money to buy this liquor with?" Sustaining an objection to that question is complained of. The discretion vested in the trial court to control the course and limit the extent of the cross-examination was not abused by such ruling.

The judgment is affirmed.