Wolfa v. State

Willoughby, J. The appellant was indicted by the grand jury of Marion county, Indiana. The indictment charged that on or about February 1, 1925, in the county of Marion, State of Indiana, the appellant did then and there unlawfully, manufacture, possess, transport, sell, barter, exchange, give away, furnish and otherwise dispose of intoxicating liquor to persons to the grand jurors unknown. The appellant was arraigned and entered a plea of not guilty and was tried by the court without a jury. From the judgment upon a finding of guilty, the appellant appeals and assigns as error that the court erred in overruling his motion for a new trial. The only question raised by the motion for a new trial is the sufficiency of the evidence to sustain the finding of the court. In determining whether the evidence is sufficient to sustain a finding the court on appeal will consider only the evidence most favorable to the prevailing party, together with the inferences and conclusions to be drawn therefrom. Lee v. State (1921), 191 Ind. 515; Tutsbree v. State (1924), 195 Ind. 581, 145 N. E. 490; Hall v. State (1923), 193 Ind. 355; Winter v. State (1924), 195 Ind. 694, 145 N. E. 567. This prosecution is brought' under §1, ch. 23, Acts 1923 p. 70. From the records of this court, it appears that in Burnett v. State (1925), 196 Ind. 681, 149 N. E. 440, the facts were the same as in the case at bar and it further appears that the questions of law raised by the *206 record in this case are all considered and decided by this court in Burnett v. State, supra. On the authority of that decision, the judgment in' this case is reversed, with instructions to sustain appellant’s motion for a new trial.