Hammell v. State , 198 Ind. 45 ( 1926 )

DISSENTING OPINION. As indicating what defendant meant and what the jury were justified in inferring he meant by his testimony that a "machine was out there" when he found the whisky in his woodshed, I call attention to the fact that defendant, after having testified that he had built a new garage, that he had an automobile and that he had kept it in there ever since the garage was built, further testified that he kept in the garage "nothing but the machine," and testified that after the officers had searched and found the liquor in his attic and had placed him under arrest, they "took the stuff out in one machine and took me in another." And the direct connection in which he referred to the "machine out there" was after stating that a door of the old woodshed opened into an alley which ran north and south past it, when he added that "I went out to the shed there — I got an old shed in the back part there and one end of it is knocked out, and this stuff was all in there, and those bottles were in a box, and they were in the shed. So I got in my coal and kindling, and I seen it setting there. There was a machine out there used in that new water line. I don't know whether this stuff came from there or not, but anyhow it was in this shed. So I didn't know hardly what to do about it, so I just took it and hid it." Under the rule that, in determining the sufficiency of the evidence to sustain the verdict, that interpretation of doubtful evidence must be accepted and that choice made as between two or more possible inferences which will support the verdict, rather than what would overthrow it, this testimony must be accepted as evidence given by the defendant himself that there was an automobile out in the alley when he found the liquor in his shed.

Defendant also testified that the door from the alley into his woodshed was not locked, that the south end of the shed had been pulled down, that the police had searched his house several times before, but this whisky was not there then, and that he first discovered it in the woodshed at about 8 o'clock that evening. His thirteen year old daughter testified that she was living at home, and had stayed at home from the time she returned from school the previous day, but never had seen any intoxicating liquor there. And the police officers testified that with a search warrant they went to defendant's home the next morning at about 3 o'clock, and there found ten one-gallon glass jugs and fourteen pint bottles full of "white mule" whisky, and two other jugs partly full, all of which were concealed under a trap door in an attic that could be reached only by climbing up through a large, square hole in the ceiling of the pantry below; that the liquor was so well hidden in a box about six feet long, eighteen inches wide and ten inches deep, beneath a "false floor" of the attic, that the officers did not find it until they climbed to the attic a second time, when one of them stepped on the lath and the trap door tilted up from over the whisky. And defendant further testified that he carried the liquor from the woodshed to his house twenty-five or thirty feet away, and put it up in the attic, where the officers found it. The undisputed evidence was that there was no stairs leading to the attic, and that the only way to get up there was by climbing through the hole by which the police officers reached it. Defendant also testified, on cross-examination, that his house had been searched and intoxicating liquor found there, in the pocket of a man named Oist who was "convicted of violating the liquor law" on that account, a few months before this.

The foregoing amounted to some evidence, at least, that the night before the whisky was seized, it was brought to defendant's woodshed in an automobile which defendant testified was out in the alley, and was placed in the unlocked shed, open to the alley, and that defendant immediately took possession of it and carried it to the attic, where he hid it in a place expressly prepared for its concealment. And from such evidence, the jury had a right to draw the inference that defendant was guilty of taking an active part in the transportation of the whisky from some point where it was loaded into that automobile to its hiding place in the box under a trapdoor in his attic, by way of the alley and the woodshed, and that his acts of "transportation" were not limited merely to carrying it from one place to another within the confines of his own home. In my opinion, the evidence is sufficient to sustain the verdict and the judgment should be affirmed. Sager v.Commonwealth (1922), 134 Va. 732, 114 S.E. 590; Steinwich v.Commonwealth (1923), 197 Ky. 262, 246 S.W. 795; Scaggs v.Commonwealth (1922), 196 Ky. 399, 244 S.W. 799; Caudill v.Commonwealth (1923), 200 Ky. 251, 254 S.W. 745; Novotny v.State (1923), 182 Wis. 304, 196 N.W. 232.

Therefore, I respectfully dissent from the opinion holding that it shall be reversed.