Becker v. State, 25188.

• Decision Date: 05 December 1928
• Docket Number: No. 25188.,25188.
• Parties: BECKER v. STATE.
• Court: Indiana Supreme Court

200 Ind. 397

164 N.E. 27

BECKER

v.STATE.

No. 25188.

Supreme Court of Indiana.

Dec. 5, 1928.

Appeal from Vanderburgh Circuit Court; Charles P. Bock, Judge.

Valentine Becker was convicted of possessing intoxicating liquor, and he appeals. Reversed, with directions to grant new trial.

Edward A. Lorch and William D. Hardy, both of Evansville, for appellant.

Arthur L. Gilliom, Atty. Gen., for the State.

MARTIN, C. J.

The errors assigned in this appeal from a conviction of appellant on a charge of unlawful possession of intoxicating liquor, under section 4, c. 48, Acts 1925 (section 2717, Burns' 1926), present the question of the admissibility in evidence of liquor seized and information gained by officers while making a search of appellant's premises.

It appears from the record that the search warrant, issued under section 31, c. 48, Acts 1925, (section 2746, Burns' 1926), by authority of which appellant's premises were searched, was issued without a sufficient showing that reasonable and probable cause for the search existed, either by a positive affidavit alleging facts or by a hearing of evidence by the issuing magistrate. The affidavit was upon information and belief, and the magistrate heard no evidence.

In such a case, under the rule established by Wallace v. State (1927) 199 Ind. 317, 157 N. E. 657 (Martin and Gemmill, JJ., dissenting), the evidence obtained by the search is inadmissible, and upon the authority thereof this judgment is reversed with directions to grant appellant's motion for a new trial.