Shepherd v. State
| Decision Date | 13 December 1928 |
| Docket Number | 25,354 |
| Citation | 164 N.E. 276,200 Ind. 405 |
| Parties | Shepherd et al. v. State of Indiana |
| Court | Indiana Supreme Court |
1. SEARCHES AND SEIZURES---Affidavit for Search Warrant---On Information and Belief---Insufficient.---Under the rule announced in Wallace v. State, 199 Ind. 317, 157 N.E. 657, an affidavit for a search warrant, made on information and belief in the form prescribed by the statute (2086 Burns 1926), does not show probable cause for issuing a warrant, in the absence of a showing that evidence was heard by the issuing magistrate, and evidence obtained while serving the warrant issued thereon is incompetent. p. 406.
2. INTOXICATING LIQUORS---Liquor Nuisance---Reputation of Place---Competent Evidence, but Insufficient to Sustain Conviction.---In a prosecution for maintaining a liquor nuisance, as defined by 2740 Burns 1926, testimony that the general reputation of the premises was that intoxicating liquor was kept and sold there, and that people were permitted to resort there for the purpose of drinking intoxicating liquor, though competent, was not alone sufficient to sustain a conviction. p. 406.
3. CRIMINAL LAW---Defendant's Statement during Illegal Search---Incompetent---Insufficient Proof.---A statement by one of the defendants charged with maintaining a liquor nuisance (2740 Burns 1926), that "it's nobody's business if we are making home-brew and selling it," made while officers were searching defendants' premises under an illegal search warrant, was incompetent evidence and, in any event, was insufficient to prove that they were making such liquor, because of the word "if" in the statement. p. 407.
4. INTOXICATING LIQUORS---Maintaining Liquor Nuisance---Unlawful Search Warrant---Evidence Inadmissible.---In a prosecution for maintaining a liquor nuisance (2740 Burns 1926) evidence that officers serving an illegal search warrant found a quantity of bottled beer on ice in a barrel at a well about 150 feet from defendants' house, on a traveled path, was not admissible, although it was not on the land described in the search warrant, but was a part of the defendants' premises which they were authorized to use, and, there being no proof that the beer belonged to the defendants or had been placed in the barrel by them, the officers had no right to arrest for an offense committed in their presence and then search the premises for intoxicating liquor. p. 407.
From Pike Circuit Court; John F. Dillon, Judge.
Ruth Shepherd and husband were convicted of maintaining a liquor nuisance, and they appeal.
Reversed.
William D. Hardy, for appellants.
Arthur L. Gilliom, Attorney-General, and Harry L. Gause, Deputy Attorney-General, for the State.
Appellants, husband and wife, were convicted and sentenced for maintaining a common nuisance under § 24, ch. 48 Acts 1925, § 2740 Burns 1926. They have assigned as error the overruling of their several motions for a new trial, in each of which motions more than twenty causes are alleged, but it will not be necessary to consider all of them.
The evidence consisted of a quantity of intoxicating liquor obtained by a search of appellants' premises under a search warrant, of certain statements made by appellant Ruth Shepherd while quarreling with the officers during the search, and the testimony of eleven witnesses, one of whom was appellant Boyd Shepherd's sister, as follows: that they knew appellants, were acquainted with the place appellants lived and...
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