Barrar v. State

• Decision Date: 14 December 1934
• Docket Number: 26302
• Citation: 193 N.E. 94,207 Ind. 706
• Parties: BARRAR v. STATE
• Court: Indiana Supreme Court

193 N.E. 94

207 Ind. 706

BARRAR v. STATE

No. 26302

Supreme Court of Indiana

December 14, 1934

Spaan & Spaan, of Indianapolis, and Dowell & Metford, of Madison for appellant.

Philip Lutz, Jr., Atty. Gen., and Paul K. Shepard, Deputy Atty Gen., for the State.

OPINION

ROLL Judge.

This is a prosecution by affidavit, by the state of Indiana, against the appellant, Nicholas Barrar, upon the charge that Nicholas Barrar did then and there unlawfully and feloniously have in his possession and under his control a certain still and distilling apparatus for the unlawful manufacture of intoxicating liquor in violation of section 2719, Burns' Ann. St. 1926, Acts 1925, c. 48, p. 144, § 6. Appellant was found guilty as charged and was sentenced to imprisonment for not less than one nor more than five years and costs.

The errors relied upon for reversal are: (1) That the court erred in sustaining appellee's demurrer to appellant's motion to quash the search warrant and the return thereon and to suppress the evidence; (2) that the court erred in overruling appellant's motion for discharge, and arrest of judgment; (3) that the court erred in overruling appellant's motion for a new trial; (4) that the finding of the court is contrary to law; (5) that the finding of the court is not sustained by sufficient evidence.

The first error urged by appellant is the sustaining of appellee's demurrer to appellant's motion to quash the search warrant and the return thereon and to suppress the evidence. Appellant contends that the affidavit for the search warrant failed to show that there was probable cause for issuing the search warrant and that the affidavit failed to set out any facts upon which the justice could judicially determine that probable cause existed. This question was decided by this court in the case of Bedenarzik v State (1933) 204 Ind. 517, 185 N.E. 114. The court there held that the showing of probable cause for the issuance of a search warrant must be in affidavit form and copied into the search warrant. In the present case the facts constituting probable cause was not included in the affidavit and the evidence on probable cause was heard orally by the magistrate and was not reduced to affidavit form; therefore on the authority of the above case the search warrant was insufficient and the trial court should have overruled appellee's demurrer to appellant's motion to quash the search warrant and the...