Berger v. State , 89 Ind. App. 719 ( 1929 )

Neal, J.

The appellant was convicted in the city court of Fort Wayne of the unlawful sale of intoxicating liquor to one Rex Morton. He appealed to the Allen Circuit Court, waived trial by jury, and was again found guilty.

He assigns as error the overruling of his motion for a new trial. The causes upon which he relies are: (1) That the finding of the court

is contrary to law; (2) that the finding is not sustained by sufficient evidence.

Appellant says the transcript of the record discloses that no affidavit was ever filed charging appellant with the violation of the ofíense of which he was convicted. However, the Attorney-General made an investigation of the papers filed in this case in the office of the clerk of Allen county, and found the affidavit in question. By proper proceedings, a copy of the affidavit now appears in the transcript of the record.

There was positive evidence that appellant, who was the owner or operator of a soft drink parlor in Port Wayne, sold to one Rex Morton in the month of January, 1928, intoxicating liquor.

The court did not err in overruling appellant’s motion for a new trial.

Judgment affirmed.