Pennybaker v. State

2 Blackf. 484, 1831 Ind. LEXIS 27

• Court: Indiana Supreme Court
• Decided: November 24, 1831
• Status: Published

Opinion

M‘Kinney, J.

This was an indictment for retailing spirituous liquors without a licence. Plea, not guilty; and, by consent, the cause was submitted to the Court without the intervention of a jury. The defendant was found guilty, and judgment rendered against him'. A bill of exceptions, taken to the opinion of the Court overruling a motion for a new trial, furnishes the evidence upon which the judgment of the Court was founded.

A single question is presented for our consideration. Can the judgment be sustained on evidence that the whisky, charged in the indictment to have been sold by the defendant, was sold by his wife, he being absent from his house, and no authority proved to have been given? We.think the evidence insufficient to establish the liability of the defendant. The presumption of agency is inadmissible. The wife, committing offenceswithout the presence or coercion of her husband, is regarded as a feme sole. She is alone responsible. 1 Russell on Crimes, 25.—1 Chitty’s Bl. 348 and note 51.

Per Curiam.

The judgment is reversed. To he certified, &c.