Michopoulos v. State , 197 Ind. 231 ( 1925 )

Appellant was charged by an affidavit and convicted by a jury in the court below of maintaining and assisting in maintaining a common nuisance. Acts 1917 p. 15, § 20. By assignments of error he questions the action of the court in overruling his motion for a new trial and his motion in arrest of judgment. The only causes here urged in support of the motion for a new trial are, the verdict is not sustained by sufficient evidence, and error of the court in refusing to permit a witness to answer a certain question on cross-examination.

From the evidence it appears that on August 10, 1923, appellant had a soft drink parlor in Gary, Lake county, Indiana, and on that day at about eight o'clock in the evening police officers of Gary entered appellants place of business and into a room described as a "rear room off the kitchen," bare of everything except three tables, glasses and several chairs. When the officers entered the room they found eight men sitting around these tables, three of whom had glasses of gin on the tables in front of them, and the others had empty glasses, which, from their smell, had contained gin. The men were intoxicated. The officers then searched the premises and found a one-gallon bottle and part of a quart bottle of gin, five gallons of alcohol, one gallon of moonshine whisky, about a gallon and a half of wine, and a part of a gallon of flavoring extract. These liquors were found in different parts of the building occupied by appellant, but the larger part of the alcohol and gin was found in the basement. No witness testified that he actually saw appellant sell or give away intoxicating liquor.

Appellant insists that in as much as there is no evidence of a sale or other disposition of the liquor by him, nor evidence of the alleged violation other than the one at the time of his arrest, a conviction under such circumstances is not supported by the evidence.

Appellant was charged with maintaining and assisting in maintaining a room, house, building, etc., where certain intoxicating liquors were then and there sold, 1. etc., in violation of law, and a place where certain persons were then and there permitted to resort for the purpose of drinking intoxicating liquor as a beverage. Appellant asserts that the words "common nuisance," as used in the statute, § 20, supra, are words of well-known meaning and necessarily infer continuous or recurrent violations. This insistence is in keeping with the proof essential to sustain a common-law nuisance charge, and finds support in the legislative language "any person who maintains or assists in maintaining such common nuisance." However, at common law a place where intoxicating liquors were sold or persons were permitted to resort for the purpose of drinking intoxicating liquor as a beverage was not a nuisance.Commonwealth v. McDonough (1866), 13 Allen (Mass.) 581. But, regardless of the common law, the legislature has power to declare such acts a nuisance. United States v. Reisenweber (1923), 288 Fed. 520, 524.

If it be conceded that each specification of the affidavit relied on as stating an offense contemplates something more than a single act, we have it in the attending circumstances 2-4. shown by a fair interpretation of the evidence at bar. It is not our province to weigh evidence, nor should we refuse to give the verdict of the jury the benefit of every reasonable inference warranted by the evidentiary facts. True, there was no direct proof of a sale. On the contrary, there was the statement of one of the men at one of the tables that he had not paid for his drink of gin. Nevertheless, it is quite obvious from the entire record before us that appellant was not found guilty of selling, but guilty of permitting persons to resort to the place maintained by him for the purpose of drinking intoxicating liquor as a beverage. The description of the room, its equipment, the activities therein and the amount and character of liquor found on the premises repels the thought of a single act, but is quite supportive of an inference that the room in question had been theretofore continuously used and maintained by appellant as a place for drinking intoxicating liquor. Lewinsohn v. United States (1921), 278 Fed. 421;United States v. Reisenweber, supra.

Counsel for appellant also insist that the court erred in sustaining an objection to a question propounded by him on cross-examination to one of the state's witnesses. The 5. witness was a police officer who said that he had arrested the men, or at least some of them, who were in appellants' place of business. The question propounded by counsel for appellant was: "You know these men were turned loose?" The slight relevancy of the answer called for by this question would not justify us in reversing the judgment, for it is quite clear that the answer could have no real bearing upon the guilt or innocence of appellant.

Appellant also insists, in support of his motion in arrest of judgment and in support of his claim that the verdict of the jury is contrary to law, that § 20, supra, is unconstitutional 6. in that the title of the act of 1917 is not broad enough to cover the crime defined as a common nuisance. This court has recently held otherwise. Perrone v. State (1925),196 Ind. 384, 148 N.E. 412; Alyea v. State (1925), 196 Ind. 364,147 N.E. 144. Upon the authority of these cases, appellant's contention of unconstitutionality cannot be sustained.

Judgment affirmed.