Sylvia v. State , 89 Ind. App. 222 ( 1929 )

Lockyear, J.

This proceeding was instituted in the Decatur Circuit Court by an affidavit in one count. The affidavit charged “that, on or about the 23rd day of March, 1928, at and in the County of Decatur and State of Indiana, Nolan Sylvia did then and there unlawfully sell, barter, exchange, furnish, give away and dispose of intoxicating liquor to Elmo Whiteman.” This affidavit, being in the language of the statute, is sufficient.

The defendant filed a motion to quash the affidavit upon the grounds that the facts stated did not constitute a public offense and that said affidavit did not state the offense charged with sufficient certainty, which motion to quash was overruled by the court, and to which ruling of the court, said defendant duly excepted.

Thereafter, the defendant waived arraignment and entered a plea of not guilty; and on June 20, 1928, said cause was tried by a jury.

The court rendered judgment against the defendant on the verdict that he be fined in the sum of $250, and committed to the Indiana State Farm for a period of ninety days.

Elmo Whiteman, living in Greensburg, Indiana, and nineteen years of age, testified for the State that on March 23, 1928, he saw the defendant, Nolan Sylvia, on Vine street in Greensburg and, at that time, he, the witness, was riding in the back seat of an Elgin car driven by Billy Chandler with Eddie Chandler, Anna May Cormody and Goldie Lee. He testified his purpose in calling on the defendant was to get something to drink, and that he got out of the car, approached the defendant and asked him if he had anything to drink, and that the defendant then asked the said Elmo White-man to “come and go to the house,” with which request, the witness complied, and that the defendant went into the house and returned and handed the witness a half pint of some kind of liquor, for which he received in payment $1; that he returned to the car and he and Eddie Chandler poured the contents of the bottle into the bottles of home brew they already had in the car; that the contents of the bottle was white and was intoxicating liquor. On cross-examination, Whiteman testified further that he could not say just'what kind of whisky itwas, and, on redirect examination, further stated that as the liquor was poured into the beer, it smelled like alcohol and after being mixed tasted strong.

Edwin Chandler testified, saying that he lived with his mother; that he saw Whiteman and the defendant together, and when Whitemán returned to the car, he said, “I got it,” and showed him a bottle of white stuff that, when poured into the beer, had an effect on the crowd and had a “kick” in it, and smelled like alcohol of some kind, and he helped pour it into the beer.

William Chandler testified that he was also present and that the contents of the bottle when mixed with the beer tasted like whisky, and that the defendant had approached him and asked him what he thought the contents of the bottle was, and that he told him at that time • he thought it was intoxicating liquor.-

Anna May Chandler testified that she was along with the group named by the previous witnesses and that the contents of the bottle smelled like liquor and “white mule,” and that she smelled it as it was poured into the beer, and it smelled like “white-mule” whisky. On cross-examination, she testified she had been around intoxicating liquor and had known what it smelled like for about two years; that she was also acquainted with the smell of alcohol as well as its taste; that the contents of the bottle smelled like alcohol, and that there was very little difference between the smell of alcohol arid “white-mule” whisky. The evidence is sufficient to sustain the verdict of the jury.

Judgment affirmed.