RUEDE v. STATE. (No. 25398.) Supreme Court of Indiana. 1. Indictment and information (161 Ν.Ε.) May 29, 1928. 71-Affidavit that defendant maintained common nuisance, to wit, place where liquors were manufactured, sold, etc., and persons were permitted to resort to drink intoxicating liquors, held not Indefinite and uncertain (Burns' Ann. St. 1926, § 2740). Affidavit that defendant did on or about certain date maintain a common nuisance, to wit, a place where liquors were then and there manufactured, sold, etc., in violation of state laws (Acts 1925, c. 48, § 24 [Burns' Ann. St. 1926, § 2740]), and persons were permitted to resort for purpose of drinking said intoxicating liquors as beverage, and that defendant did unlawfully keep intoxicating liquors in and used them in maintaining said place, held not indefinite and uncertain. 2. Criminal law 878(3) -Verdict finding defendant guilty on one count of affidavit and saying nothing as to other is equivalent to finding of not guilty as to latter. A verdict finding defendant guilty on one count of the affidavit and saying nothing as to the other count is equivalent to an express finding of not guilty as to the latter count. 3. Criminal law 789(4)-Instruction to convict if evidence satisfies jury beyond reasonable doubt that defendant is guilty of any of offenses charged held not erroneous. Instruction to convict "if the evidence satisfies you beyond a reasonable doubt" that defendant is guilty of any one of offenses charged in affidavit held not erroneous. 4. Criminal law 1172(8)-Instruction applying only to count on which defendant was not convicted was harmless. Instruction applying only to count of affidavit on which defendant was not convicted was harmless and not ground for reversal of conviction on other count. 5. Criminal law 763 764(1)-Instruction that "evidence has been introduced as to reputation of" defendant's place of business held not to invade jury's province in trial for main taining liquor nuisance (Burns' Ann. St. 1926, § 2740). In trial for maintaining a common liquor nuisance, in violation of Acts 1925, c. 48, § 24 (Burns' Ann. St. 1926, § 2740), instruction that "evidence has been introduced as to the reputation of" defendant's place of business and that jury will consider its bad reputation as place where intoxicating liquor is sold, bartered, or given away in violation of law, if found beyond reasonable doubt in connection with all other evidence in determining defendant's guilt or innocence, held not erroneous as invading jury's province, where evidence of such rep utation was introduced. 6. Criminal law7981/2-Instruction to convict on either or both counts in liquor case If evidence warrants it beyond reasonable doubt, and giving forms of verdicts, held not error (Burns' Ann. St. 1926, § 2740). In trial for unlawful possession of intoxicating liquor and maintenance of common nuisance in violation of Acts 1925, с. 48, § 24 (Burns' Ann. St. 1926, § 2740), instruction stating that jury could find defendant guilty on either or both of such counts, "if evidence warrants it beyond a reasonable doubt," and giving forms of verdicts, held not erroneous. 7. Intoxicating liquors 236(9)-Evidence held insufficient to sustain conviction of maintaining liquor nuisance (Burns' Ann. St. 1926, § 2740). Evidence that persons came to defendant's place of business in automobiles and took away packages, not shown to contain intoxicating liquor, and that men congregated there, without showing that their purpose was to drink intoxicating liquor, held insufficient to sustain conviction of maintaining a common nuisance in violation of Acts 1925, c. 48, § 24 (Burns' Ann. St. 1926, § 2740). 8. Criminal law 1144(13)-It cannot be presumed on appeal that men congregating at defendant's place of business were there to drink Intoxicating liquor (Burns' Ann. St. 1926, § 2740). It cannot be presumed, in support of conviction of maintaining common liquor nuisance in violation of Acts 1925, с. 48, § 24 (Burns' Ann. St. 1926, § 2740), that men shown to have congregated at defendant's place of business were there for purpose of drinking intoxicating liquor. Appeal from Delaware Circuit Court; Clarence Dearth, Judge. Frank Ruede was convicted of maintaining a common nuisance, and he appeals. Reversed, with directions. The affidavit upon which the appellant was arrested and tried was as follows: "Count 1. Arthur B. Jones swears he is informed and believes that Frank Ruede on or about the 18th day of September, 1926, at and in the county of Delaware, state of Indiana, did then and there unlawfully have in his possession intoxicating liquor, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state of Indiana. "Count 2. And the undersigned affiant, for a second count of affidavit, herein upon his oath says that Frank Ruede on or about the 18th day of September, 1926, at and in the county of Delaware, state of Indiana, did then and there unlawfully maintain and assist in maintaining a common nuisance, to wit, a room, house, building, and place where intoxicating liquors were then and there manufactured, sold, bartered, given away, and delivered in violation of the laws of this state, and where persons were then and there permitted to resort for the purpose of drinking said intoxicating liquors as a beverage, and the said defendant did then and there unlawfully keep intoxicating liquors in and use the same in maintaining said place, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state of Indiana." Instruction No. 4 was as follows: "The affidavit in this case charges the defendant with numerous criminal offenses, and is di For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes vided into two counts; but if the evidence satisfies you, beyond a reasonable doubt, that the defendant is guilty of any one of these offenses, then you should return a verdict of guilty against him, as that is all the law requires. The law gives the state the right to charge the defendant with all of these alleged offenses in one affidavit, but it only requires it to establish sufficiently one or more of them to entitle it to a verdict of guilty at your hands." Instruction No. 12 was as follows: "Evidence has been introduced to you as to the reputation of the place of the defendant's business. This evidence is to be considered by you and weighed as all other evidence introduced, and, after so considering this evidence, if you should find beyond a reasonable doubt that the reputation of the said place of business of the defendant is bad, as to its being a place where intoxicating liquor is sold, bartered, or given away in violation of the law, or a place where persons are permitted to resort for the purpose of drinking intoxicating liquor as a beverage, then you will consider this fact in connection with all the other evidence in this case in determining the guilt or innocence of this defendant on the charge of maintaining a nuisance." Instruction No. 17 was as follows: "The court instructs you that if the evidence warrants it beyond a reasonable doubt, that you can find the defendant guilty of the first count of the affidavit or of the second count of the affidavit or of the first and second counts of the affidavit, and that the penalty for violating either the first count or the second count is the same. If you should find the defendant guilty of the first count of the affidavit or of the second count of the affidavit, or of the first and second counts of the affidavit, the form of your verdict will be, 'We, the jury, find the defendant guilty of the count of the affidavit,' inserting in the blank space the count or counts that you find the defendant guilty of, 'and that he be fined in the sum of $,' inserting in the blank space the amount you agree upon, which shall not be less than $100 nor more than $500, 'and that he be imprisoned in the county jail for a period of ' filling in the blank space the time you agree upon, not, however, less than 30 days or more than 6 months. If you find the defendant not guilty, the form of your verdict will be, 'We, the jury, find the defendant not guilty.' When you retire to your jury room, you will select one of your number foreman, and when you have agreed upon a verdict, you will reduce the same to writing and cause your foreman to sign the same as such foreman, and you will then return said verdict into open court. You will have with you the affidavit and forms of verdict, either of which forms you may use, or you may write your own verdict. You may go with the officer." Clarence E. Benadum of Muncie, for appellant. Arthur L. Gilliom, Atty. Gen., and U. S. Lish, Former Atty. Gen., for the State. GEMMILL, J. By an affidavit in two counts, appellant was charged in the first count with the unlawful possession of intoxicating liquor, and in the second count with maintaining a common nuisance, on the 18th day of September, 1926, in Delaware county. He was found guilty by a jury on the second count. The offense of which he was convicted is defined in section 24, c. 48, Acts 1925, and in section 2740, Burns' 1926. He has appealed from the judgment of fine and imprisonment rendered on the verdict. [1] The affidavit was not indefinite and uncertain, as contended by the appellant. It was not error to overrule the motion to quash same. In the motion for a new trial, 29 causes were stated, but several of them are not presented for review. [2] The appellant conducted a place in the city of Muncie, where he sold cigars, tobacco, and soft drinks. He had been in possession of same for about two weeks, when officers with a search warrant searched it for intoxicating liquor. In an unfurnished room connected with the room where the business was carried on, the officers found, in a pile of trash, two bottles containing about three or four ounces of whisky, and also some empty bottles that smelled like they had contained whisky. The jury did not make any finding on the first count of the affidavit charging possession. A verdict finding the defendant guilty of one count of the affidavit, and saying nothing as to the other count, is as to such other count equivalent to an express finding of not guilty. Weinzorpflin v. State (1844) 7 Blackf. 186; Dickinson v. State (1880) 70 Ind. 247; Lamphier v. State (1880) 70 Ind. 317; Harvey v. State (1881) 80 Ind. 142. [3] Exceptions were taken to various instructions given by the court of its own motion. Instruction No. 4 was in regard to the necessary amount of evidence to support a finding of guilty. There can be no valid objection to this instruction. [4] Instruction No. 6 was on the subject of the quantity of intoxicating liquor which may constitute possession. This instruction, without doubt, was intended to apply and did apply to only the first count of the affidavit, on which appellant was not convicted. He could not have been harmed thereby. [5] Instruction No. 12 was in regard to evidence concerning the reputation of the place of defendant's business. It is competent to prove the general reputation of the place where it is claimed that intoxicating liquor is possessed or sold or where people resort for the purpose of drinking intoxicating liquor. Section 28, c. 48, Acts 1925. Evidence was introduced as to the reputation of the place in question. This instruction did not invade the province of the jury and was correct. [6] Instruction No. 17 covered the subjectmatter of the two counts and contained (161 Ν.Ε.) forms of verdicts. There is no merit to appellant's objections to same. Exceptions were taken to the admission of some of the evidence. Part of this evidence to which objections were made was compe tent, and the balance was immaterial and appellant could not have been injured by its admission. [7, 8] One of the causes for a new trial is that the verdict is not sustained by sufficient evidence. From the evidence it does not appear that the defendant maintained or as sisted in maintaining a place where intoxicating liquor was sold, manufactured, bartered, or given away, or where persons were permitted to resort for the purpose of drinking intoxicating liquor as a beverage, or a ⚫ place where such liquor was kept for sale, barter or gift in violation of the laws of this state. There was evidence that persons would come there in automobiles and take packages away; but it was not shown that the packages contained intoxicating liquor. There was evidence that men congregated there; but it cannot be presumed that they were there for the purpose of drinking intoxicating liquor. And, as heretofore stated, the verdict of the jury was equivalent to an express finding that the defendant was not guilty of the possession of intoxicating liquor. The verdict was not sustained by sufficient evidence. The judgment is reversed, with directions to sustain appellant's motion for a new trial. BIGHAM v. NATIONAL BROOKVILLE 90 days allowed by him after motion for new trial was overruled and at subsequent term of court, were not in record; order giving additional time when judgment was rendered at such term being without force. Appeal from Franklin Circuit Court; Cecil Tague, Judge. Action by the National Brookville Bank, administrator, against John C. Bigham. Judgment for plaintiff, and defendant appeals. Affirmed. M. P. Hubbard, of Brookville, and Wiles, Springer & Roots, of Connersville, for appellant. Raymond McCarty, and V. J. McCarty, both of Brookville, and O. S. Boling, of Indianapolis, for appellee. MCMAHAN, J. Action by appellee against appellant for damages. A trial by jury resulted in a verdict and judgment for appellee. [1] The only proper specifications in the assignment of errors are that the court erred in overruling appellant's motion to strike out part of the complaint and in overruling his motion for a new trial. It is not reversible error to overrule a motion to strike out part of a pleading. Guenther v. Jackson, 73 Ind. App. 162, 126 N. E. 873; Eagle Lake Ice Co. v. Munson, 73 Ind. 496, 127 N. Ε. 839. [2, 3] The contention that the court erred in overruling the motion for a new trial requires a consideration of the evidence. Appellee insists the evidence is not in the record, and that, consequently, no question is presented relating to the overruling of this motion. The record discloses that the jury returned its verdict May 21, 1926. Appellant filed his motion for a new trial June 19, 1926. This Appellate Court of Indiana, in Banc. April 19, motion was overruled March 19, 1927, that 1928. 1. Appeal and error 1042(3)-Overruling motion to strike part of pleading is not reversible error. It is not reversible error to overrule a motion to strike out part of a pleading. 2. Trial 273-Exceptions must be taken when rulings are made, unless carried forward by motion for new trial to time of ruling thereon. Exceptions to court's rulings must be taken at time rulings were made, except when they are causes for new trial under statute and exceptions are carried forward by motion for new trial to time of ruling thereon, when time may be given by court to prepare and file bill of exceptions containing rulings and exceptions. 3. Appeal and error 537-Evidence and instructions in bills of exceptions, not tendered within time allowed after overruling of motion for new trial, nor until subsequent term, were not in record. Evidence and instructions, contained in bill of exceptions tendered to trial judge more than being the last day of the February, 1927, term of court. Appellant excepted to that ruling, and 90 days was given in which to file all bills of exceptions. Judgment was not rendered until the first day of the next term of court, when another 90 days was given in which to file all bills of exceptions. The bill of exceptions containing the evidence was filed June 21, 1927, and the bill containing the instructions was filed June 28, 1927. Both bills of exceptions were filed more than 90 days after the overruling of the motion for a new trial, and at a subsequent term of court. It is well settled that exceptions to the rulings of the court must be taken at the time the rulings are made, except when under the statute the rulings of the court are causes for a new trial, and when the exceptions to such rulings are carried forward by such motion to the time of the ruling thereon, when time may be given by the court within which to prepare and file a bill of exceptions containing such rulings and exceptions. The record For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes HATFIELD v. THURSTON et al.* (No. 13007.) in the instant case shows that, at the time the motion for a new trial was overruled, appellant was given 90 days in which to file all bills of exceptions; that no re-extension of time was granted; and that the bill of exceptions containing the evidence and the bill containing the instructions were not tendered 1. Appeal and error 989-Appellate Court, to the trial judge until more than 90 days after the motion for a new trial had been overruled, and at a subsequent term of court. The last order giving time was without force. The evidence is not in the record. Section 685, Burns' 1926; Shaw v. Union Trust Co., 79 Ind. App. 277, 137 N. E. 895. For like reason the instructions are not in the record. Judgment affirmed. DAUSMAN, J., absent. MARSHALL FIELD & CO. v. ANDERSON Appellate Court of Indiana, in Banc. April 19, Appeal and error 768-Uncontroverted contention that no question is presented, by reason of failure to set out motion for new trial in brief, must prevail. Contention by appellee, that, under the rules of Appellate Court, no question relative to overruling of motion for new trial is presented when such motion is not set out in appellant's brief, must prevail on failure of appellant either to reply to contention or make any effort to overcome defect. Appeal from Superior Court, Madison County; Willis S. Ellis, Judge. Action by Marshall Field & Co. against the Anderson Trust Company. Judgment for defendant, and plaintiff appeals. Affirmed. Divin, Divin & Campbell, of Anderson, for appellant. Bagot, Free & Pence, of Anderson, for appellee. PER CURIAM. An action by appellant for goods and merchandise alleged to have been sold to appellee's decedent. Judgment for the defendant. The error assigned relates to the overruling of appellant's motion for a new trial. Appellee has called attention to the fact that the motion for a new trial is not set out in appellant's brief, and insists that under the rules of this court no question is presented. Appellant has neither replied to this contention nor made any effort to overcome the defect. Under the circumstances appellee's contention must prevail. Judgment affirmed. DAUSMAN, J., absent. Appellate Court of Indiana, in Banc. under assignment to overruling motion for new trial, will consider only whether decision was sustained by sufficient evidence. Where error assigned and presented is action of court in overruling motion for new trial, Appellate Court will only consider whether or not the decision of the court is sustained by sufficient evidence. 2. Brokers86(1)-Evidence held not to sustain finding for defendants in action to recover commissions for selling real estate. In action on contract to recover commission, for selling real estate, evidence held not to sustain finding and judgment for defendants. 3. Brokers 43 (3) Broker is entitled to commission pursuant to agreement for sale of real estate after securing contract of sale In writing (Burns' Ann. St. 1926, § 8048). Where owner of real estate agrees with broker that if latter will find a purchaser for real estate he will be paid a commission for his services, and contract of sale in writing is entered into pursuant to such agreement, Burns' Ann. St. 1926, § 8048, will be satisfied and broker entitled to his commission. Appeal from Municipal Court, Marion County; Thomas Garvin, Judge. Action by Harry D. Hatfield against Otis H. Thurston and another. Judgment for defendants, and plaintiff appeals. Reversed, with directions. Harry D. Hatfield, of Indianapolis, in pro. per. John J. McShane, of Indianapolis, for appellees. NICHOLS, J. Action on contract by appellant, seeking to recover from appellees $275 as a commission for selling appellees' real estate, which contract was in writing and signed by appellees. The issues, formed by appellees' general denial to the complaint. were submitted to the court for trial and the court heard the evidence submitted by appellant, at the conclusion of which counsel for appellees moved the court to find for appellees, and the court sustained the motion and rendered judgment on its finding for appellees, from which this appeal is prosecuted. [1] The error assigned and presented is the court's action in overruling appellant's motion for a new trial under which we consider only that the decision of the court is not sustained by sufficient evidence. Appellees made substantial objection to appellant's original brief. Thereupon, appellant, by leave of court, filed an amended brief, which amended brief appellees have For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (161 Ν.Ε.) also forcefully challenged. But, while we do not commend such amended brief as a model of perfection, we are fully satisfied that appellant has made a good-faith effort to present the errors which he alleges, and from it we think we understand the question involved so as to reach a right result. It appears by the evidence that the purchaser of the real estate involved, after some preliminary negotiations, delivered to appellant a written and signed proposition to purchase such real estate, together with a deposit of $100 as earnest money. Appellees had theretofore authorized appellant to find a purchaser for their property and had orally agreed to pay him a commission for such services. Such proposition was presented to and accepted by appellees in writing, such written acceptance being in the following words, to wit: "As owners of the above-described real estate, we hereby accept the above proposition this 16th day of July, 1926, and agree to pay Harry D. Hatfield the sum of $275 for his services." Thereafter, it appears by the evidence, appellees and the purchaser came to appellant's once to close the deal, at which the purchaser asked for a deed to the property, but as such purchaser had agreed to pay the purchase price of $5,500 by paying $1,000 cash upon the delivery of a good and sufficient general contract and to pay the remainder of the purchase price at the rate of $45 per month, on the first of each and every calendar month, with 7 per cent. interest, the same to be computed every six months, appellant informed the purchaser that it was not proper to give her a deed at that time. Thereupon the purchaser demanded the return of the $100 earnest money, which was refused, and appellees and the purchaser left the office. Thereafter appellees informed appellant to keep out of the deal, and in a few days thereafter appellees and the purchaser, between themselves, closed the deal. [2] The foregoing appears as stated above, by appellant's evidence appellees having offered no evidence. It is clear that the trial court erred in sustaining appellees' motion, at the close of appellant's evidence, to find for appellee, and that the judgment upon such finding is not sustained by the evidence. To permit appellees to accept the benefits of appellant's services in obtaining a purchaser for the real estate and then to discharge him without compensation would be to permit them to perpetrate a fraud on him. [3] It is well settled that where the owner of real estate agrees with a broker that, if he will find a purchaser for such real estate, he will be paid a commission for his services, and in pursuance to such agreement a contract of sale in writing was entered into, in this case in the form of a written proposi tion and written acceptance which included an agreement to pay the broker for his services, the statute, section 8048, Burns' 1926, will be satisfied and the broker will be entitled to his commission. Love v. Miller, 53 Ind. 294, 21 Am. Rep. 192; McFarland v. Lillard, 2 Ind. App. 160, 28 Ν. Ε. 229, 50 Am. St. Rep. 234; Shelton v. Lundin, 45 Ind. App. 172, 176, 90 Ν. Ε. 387. Judgment reversed, with instructions to grant a new trial. Insurance437-Liability for injury sustained due to alleged criminal act of stretching cable across highway in operating wrecking car held within liability policy. Insurance company under liability policy indemnifying insured on account of bodily injury and death accidentally inflicted by operation of automobile used as wrecking car held liable to insured for amount of attorney's fees and judgment recovered by person injured as result of cable stretched across road and attached to mired car which insured sought to extricate by use of his wrecking car, notwithstanding claim that stretching of cable across highway violated criminal statute. Appeal from Superior Court, Vigo County; Clay Phillips, Special Judge. Action by the Rousch Motor Company against the Security Underwriters, Inc. Judginent for plaintiff, and defendant appeals. Affirmed. Jackiel W. Joseph, of Indianapolis, Beasley, Douthitt Crawford & Beasley, of Terre Haute, and Wm. J. Henley, Sr., of Rushville, for appellant. Piety, Kelly & Piety, of Terre Haute, for appellee. MCMAHAN, J. This is an action by the Rousch Motor Company, appellee herein, against the Security Underwriters, Inc., appellant, on a policy of insurance issued by appellant to appellee to indemnify the latter against loss from liability imposed by law upon the insured on account of bodily injury and death accidentally inflicted and caused by the use or operation of an automobile owned by the insured and used as a wrecking car. The policy also covered loss on account of injury to personal property. While the policy was in force appellee was employed by another to recover and move an automobile that had been mired along the side of a public highway. The wrecker was equipped with a drum or windlass to which a steel For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |