Smith v. State

23 Ind. 117

• Court: Indiana Supreme Court
• Decided: November 15, 1864
• Status: Published

Opinion

Gregory, J.

Liformation against* Smith for selling intoxicating liquor to one Browning, a minor. Plea, not guilty; trial by tbe court; finding guilty; motion fora new trial overruled; and judgment on tbe finding.

Tbe only question presented by tbe record is, does tbe evidence sustain tbe finding?

There was but one witness examined on tbe part of tbe state, and as to tbe non-age of Browning, be testified as follows: “Think Browning was not of age; don’t know any thing about bis age, except what I beard. I know I beard bis mother and himself say be was not of age; be looks like be was of age.” That part of tbe testimony as to what witness beard was objected to by tbe defendant.

"We think this evidence does not sustain tbe finding of tbe court.

There was no proof that tbe defendant knew that Browning was a minor, and as Browning bad tbe appearance of being of age, tbe court erred in finding tbe defendant guilty.

Judgment reversed, and a new trial ordered.