Appellant was convicted of maintaining a common nuisance in violation of § 20, ch. 4, Acts 1917 p. 25. The error relied upon for reversal is the overruling of the motion for a new trial.
The specifications in the motion for a new trial allege that the verdict of the jury is contrary to law, that it is not sustained by sufficient evidence, error in giving and in refusing to give certain instructions, and the overruling of challenges to certain jurors.
Arthur Jones, chief of police of the city of Muncie, testified, in substance, as follows: On the evening of February 19, 1923, he, in company with officers Cunningham, Goodpasture and Bennington, visited appellant at his home; told him they had a search warrant and had come to look his place over; he said he had a little stuff in the basement; that the search warrant was read, after which they went to the basement; he (appellant) told witness he was making a little stuff for himself; on way down stairs, he said he had some wine; he had a 10-gallon keg full of "white mule" and a 10-gallon keg full of "red mule"; he wanted us to taste it; we tasted it; it was whisky; found two or three gallon bottles of whisky in addition to that in the kegs; found a 15-gallon still, made out of a copper wash boiler; the still was warm and there was whisky dripping from the spigot; found 35 gallons of wine; 150 pounds of sugar, and about a dozen, empty bottles; the wine was intoxicating; there was also *Page 125 a hose, a sink and a stove. The things described, except some wine and some of the bottles, were in a room about 15 feet by 20 feet, which was locked. The testimony of the other three officers as to finding the still, the whisky and wine, was, in substance, the same as the testimony of officer Jones. One of them testified that appellant asked them not to take the still, saying it was his wife's wash boiler.
Appellant testified that he told the officers he had some wine, that the room in which the still was found had been rented to Harry Rousch, who lived at Fort Wayne, and to whom he rented that one room in the basement about a month previous to the time the officers made the search; that he did not know the still was there or that any whisky was there until the officers found it; that he did not make the liquor and didn't know anybody else did. He denied ownership of any of the property or that he told the officers that the still or boiler was his. He also told of the movements of Rousch, saying he came to the house about once a week and that he had left the house about a half hour before the officers came.
The section of the statute under which appellant was convicted provided, among other things, that any room, house or place of any kind where intoxicating liquor was sold, manufactured, bartered or given away in violation of law was a common nuisance, and any person who maintained or assisted in maintaining the same was guilty of a misdemeanor, and, upon conviction, should be fined and imprisoned.
The evidence was ample to sustain a finding that appellant was maintaining a place where intoxicating liquor was being manufactured in violation of the laws of this state. It 1, 2. is not necessary in a case like the present to prove that the defendant sold, bartered or gave any of the liquor to any person. The manufacture of the same is sufficient to sustain a verdict. *Page 126 The contention that the verdict is contrary to law and that it is not sustained by sufficient evidence cannot prevail. Beemer v.State (1925), 196 Ind. 95, 147 N.E. 276; Manley v. State (1925), 196 Ind. 529, 149 N.E. 61, and other cases cited by appellant are not in point.
Without setting out the one instruction given, to which objection is made, and the instructions tendered and refused, it is sufficient to say that the one given correctly states 3. the law and is not subject to the objections urged, and the instructions refused, in so far as they correctly state the law, were covered by those given.
Referring to the tendered instruction to the effect that circumstantial evidence "must be of such cogency and force as to exclude every hypothesis except the single one of the 4. defendant's guilt," the correct rule is that it must be such as to exclude every reasonable hypothesis inconsistent with the defendant's guilt. Reynolds v. State (1897), 147 Ind. 3, 46 N.E. 31; Robinson v. State (1919),188 Ind. 467, 124 N.E. 489. The instruction as tendered did not correctly state the law.
Appellant next contends the court erred in overruling his challenge to certain jurors. The testimony and facts developed on the voir dire examination of these jurors are not set out 5. in the brief. A mere reference to the place in the record where such testimony can be found is not sufficient. There was no error in overruling the motion for a new trial.
Judgment affirmed.