ON PETITION FOR REHEARING. In the original opinion, without discussing the evidence, we held that appellant's guilt was established. Of this holding, complaint is made in a petition for rehearing, and we have decided that, in fairness to appellant, we shall set out the substance of the evidence as it appears in the record.
Appellant, a taxi-cab driver, was, on the night of February 4, 1925, driving his cab on one of the streets of the city of Muncie; with him in the cab at the time was Lena Lake; while so driving, he overtook Arthur Redding and Pauline Shaw and asked them to get in the cab with him and take a ride; they accepted the invitation, and appellant drove his cab about one mile, where he stopped by the side of a street near a park and turned off the lights, it then being after midnight; when the car had stopped and the lights were out, appellant took a bottle of whisky which he had in his possession, and asked if any of the party wanted a drink; as he did so, he handed the bottle to Redding; just then two police officers approached, one to each side of the cab; as they came up, Redding let the bottle he had taken from appellant fall upon the floor of the cab; one of the officers picked up the bottle which was open, and found that it contained whisky; at the same time the officer on the other side of the cab found a bottle containing whisky on the floor of the cab near where appellant was sitting; from the time Redding and Miss Shaw got in the cab until the officers appeared, appellant had not been out of the cab, and no person came to the cab, and neither of the women nor Redding had any whisky or had seen any whisky except that which appellant had in his possession when the car stopped, which was just before *Page 424 the officers came; the two bottles containing whisky were exhibited to the jury as a part of the evidence at the trial. Appellant submitted no evidence to the jury, and made no defense on the merits.
With the evidence of the five unimpeached witnesses of the State before them, the members of the jury could not, without disregarding their oaths, have done otherwise than find appellant guilty.
Rehearing is denied.