Briese v. State

Ewbank, J. Appellant was convicted of maintaining a nuisance, as defined by §24 of an act concerning intoxicating liquors. Acts 1925 p. 144, 154, §2740 Burns 1926. An affidavit in three counts charged him with: (1) Unlawfully possessing intoxicating liquor; (2) unlawfully maintaining and assisting to maintain a common nuisance, described as being a room and place where intoxicating liquor was kept for sale, barter and delivery in violation of the laws *644 of this state, and where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage; and (3) unlawfully selling, bartering, exchanging, giving away and furnishing intoxicating liquor “to one John Doe, whose true and full name is to affiant unknown.” The cause was tried by the court and defendant was found guilty (of maintaining a nuisance) as charged in the second count of the affidavit,' but not guilty as charged in the first and third counts. Overruling the motion asking a new trial for the alleged reason that the finding is not sustained by sufficient evidence is assigned as error. Other specifications in the motion for a new trial are waived by the failure to mention them in appellant’s points and authorities or to support them in any way. After the state had rested its case, a motion for judgment in favor of the defendant on the third count of the affidavit because of a variance between the allegations of that paragraph and the proof as to the name of the person to whom intoxicating liquor was sold, was sustained, and judgment was rendered accordingly. There was evidence, which, if believed, fairly tended to prove that the defendant unlawfully maintained and assisted in maintaining a place where intoxicat ing liquors were kept for sale in violation of law and where persons were permitted to resort for the purpose of drinking intoxicating liquor. And in passing on the sufficiency of the evidence to sustain the finding, this court must accept as true all evidence which tends to sustain it and reject all evidence to the contrary. The mere fact that the trial court found the defendant not guilty of making the sale to “John Doe” which was charged in the third count, and not guilty of unlawfully possessing intoxicating liquor as charged in the first count, did not amount to a *645 finding that he did not maintain nor assist to maintain a room and place where intoxicating liquors “were kept” for sale and delivery in violation of law, and where persons were permitted to resort for the purpose of drinking intoxicating liquor as a beverage. One who maintained or assisted to maintain such a place need not necessarily have had the liquor in his own possession which was sold to or drunk by the persons who resorted there for unlawful purposes. The judgment is affirmed.