— Appellant was charged by indictment with selling intoxicating liquors without a license. There was a trial by jury, verdict of guilty, and a fine of $50 assessed. Judgment was rendered accordingly.
Appellant has appealed to this court and assigned as error: (1)' That the indictment does not state facts sufficient to constitute a public offense; (2) that the trial court erred in overruling his motion for a new trial.
The indictment, in so. far as it is material to the questions here presented, charges that on January 9 or 10, 1916, appellant, at the county of Hamilton, and State of Indiana, did sell to Oscar Woddel one pint of whisky and two pint bottles of beer-without then and there having a license to sell intoxicating liquors according to the laws of the State of Indiana.
1. The objection urged against the indictment is that it does not state any price for which the liquor was sold. The attention of the trial court was not called to this objection by a motion to quash, and under the ruling of this court in the case of Boos v. State (1913), 181 Ind. 562, 105 N. E. 117, that question must be considered as waived. Hay v. State (1912), 178 Ind. 478, 98 N. E. 712, Ann. Cas. 1915C 135; Pittsburgh, etc., R. Co. v. Home Ins. Co. (1915), 183 Ind. 355, 359, 108 N. E. 525.
Appellant insists with some earnestness that the failure to allege the price paid for the liquor was the omission of a material fact, without which the trial court did not acquire jurisdiction, and therefore within the
The Hamilton Circuit Court is a court of general jurisdiction. Long v. Ruch (1897), 148 Ind. 74, 47 N. E. 156. It had jurisdiction over the class of cases to which the case at bar belongs, (§1433 Burns 1914, §1314 R. S. 1881; United States, etc., Ins. Co. v. Clark [1907], 41 Ind. App. 345, 83 N. E. 760), and the mere failure to plead the price paid for the liquor would not go to the jurisdiction of the court over the subject-matter.
Appellant, in support of his motion for a new trial, among others, urges eight reasons, all to the effect that the court erred in excluding certain evidence.
2. The defense was an alibi, and a brief statement of the evidence most favorable to appellant as a basis for his insistence, will not be out of place. It is undisputed that on January 9, 1916, a chicken show was held at what is known as Magnetic Springs Park, located immediately west of the town of Cicero, in Hamilton county, Indiana, and during the evening was visited by more than 250 persons; that the prosecuting witness, who was the sheriff of Hamilton county, arrived at the park about twelve o’clock that night and, between twelve and one o’clock, on the morning of January 10, he purchased liquor from some one there on that occasion. The building which housed the chickens was owned by C. B. Scherer, appellant’s father, who lived in a part of it. In another part he conducted a restaurant, and on the evening in question he was engaged in serving lunch to all requesting such service. Appellant at the time assisted generally his father about the premises. One of the spectators, a stranger in that
By the excluded evidence appellant proposed to prove by the witness that he saw the grip opened, and a bottle of whisky and a bottle of beer taken out by the stranger, a person of medium size, and that they resembled and were labeled the same as the bottle of whisky and beer purchased by the prosecuting witness and exhibited to the jury.
It must be kept in mind that the proposed testimony had reference to the knowledge of the witness obtained more than four hours prior to the alleged sale. There is no evidence that the stranger sold or offered to sell any of the liquor in his possession or that the stranger and Stout were the same person, nor evidence descriptive of the stranger, Stout or appellant from which the jury might draw the inference of mistaken identity
3. Considering the defense most earnestly relied on, it was incumbent on the state to prove beyond a reasonable doubt the presence of the accused at the time and place the crime was committed. Evidence tending to prove an alibi “not only goes to the essence of guilt, but it traverses one of the material averments of the indictment.” 1 Wharton, Crim. Ev. (10th ed.) §333. So that any evidence supporting this defense was competent, and appellant was entitled to have the benefit of it as bearing on the question as to. whether or not he was present and made the alleged sale; for, if from all the evidence the jury had a reasonable doubt as to whether or not he was present, he was entitled to an acquittal. Howard v. State (1875), 50 Ind. 190; Binns v. State (1874), 46 Ind. 311; Wharton, Crim. Ev. (10th ed.) §§333, 951.
2. In our opinion all the facts and circumstances offered in evidence tending to show that appellant was absent at the time and place of the alleged violation were admitted, and the proposed testimony was not only too remote, but was not relevant for the purpose of establishing an alibi.
Appellant also claims that the verdict is not sustained by sufficient evidence, and that it is contrary to law. Neither claim can be allowed. The evidence to which we have already referred is sufficient' as a matter of
The judgment is affirmed.
Note. — Reported in 116 N. E. 52. Criminal law: (a) burden of proof of an alibi, 41 L. R. A. 534, 8 Ann. Cas. 1189; (b) sufficiency of evidence of alibi, 8 Ann. Cas. 1190. See under (1) 22 Cyc 411; (3) 12 Cyc 383; (4) 12 Cyc 404, 496.