Biddle v. State
| Decision Date | 28 June 1927 |
| Docket Number | 24,811 |
| Citation | 157 N.E. 280,199 Ind. 284 |
| Parties | Biddle v. State of Indiana |
| Court | Indiana Supreme Court |
1. CRIMINAL LAW.---Plea in abatement must precede plea of not guilty.---A plea in abatement must be pleaded before a plea of not guilty, and a trial court should not permit the filing of such a plea thereafter. p. 287.
2. CRIMINAL LAW.---Overruling plea in abatement filed after plea of not guilty was not error.---When a plea in abatement is improperly pleaded, it should be rejected on motion to that effect, but where the issue presented by such plea was submitted to the court and the finding was in favor of the state, the same result was reached, and there was no error p. 287.
3. CRIMINAL LAW.---Error in overruling motion to suppress evidence must be assigned as cause for new trial under clause 1 of statute.---Alleged error in overruling a motion to suppress evidence, made and ruled on before the trial, was not error of law "occurring at the trial" (cl. 7, 2325 Burns 1926), but must be specified as "order of the court... by which the defendant was prevented from having a fair trial," under clause 1 of said section. p. 287.
4. CRIMINAL LAW.---Motion for new trial on ground of error of law "occurring at the trial" presents no question as to ruling on motion to suppress evidence ruled on before trial.---A motion for a new trial on the ground of "error of law occurring at the trial" (cl. 7, 2325 Burns 1926) presents no question for review on appeal as to a ruling on a motion to suppress evidence, made and ruled on before trial, as action of the court before the beginning of the trial cannot be assigned as error of law "occurring at the trial." p. 287.
5. CRIMINAL LAW.---Evidence considered on appeal.---In determining whether the evidence is sufficient to sustain a finding of guilty, the Supreme Court will consider only the evidence favorable to the state, together with the inferences and conclusions to be drawn therefrom, and evidence contradictory thereof will not be considered. p. 289.
6. CRIMINAL LAW.---Supreme Court will consider inferences flowing from established facts as well as testimony of witnesses.---In determining whether the evidence is sufficient to sustain the verdict of a jury or the finding of the court, the Supreme Court will consider, not only the testimony of the witnesses, but also such inferences as flow naturally from established facts. p. 290.
7. INTOXICATING LIQUORS.---Evidence held sufficient to sustain conviction for having possession of a still and distilling apparatus for the manufacture of intoxicating liquor. p. 290.
From Marion Criminal Court (56,149); W. W. Thornton, Special Judge.
Morris Biddle was convicted of having possession of and using a still and distilling apparatus for the purpose of manufacturing intoxicating liquor, and he appeals.
Affirmed.
Holmes & McCallister, for appellant.
Arthur L. Gilliom, Attorney-General and Edward J. Lennon, Jr. Deputy Attorney-General, for the State.
The appellant was prosecuted by affidavit for a violation of § 1, ch. 33, Acts 1923 p. 107. The charging part of the affidavit is as follows: That Morris Biddle, on or about January 10, 1924, at and in the county of Marion, State of Indiana, did then and there unlawfully and feloniously have in his possession and under his control a certain still and distilling apparatus for the manufacture of intoxicating liquor in violation of the laws of this state and did then and there use said still and distilling apparatus for the manufacture of intoxicating liquor, in violation of the laws of this state.
On a plea of not guilty, the appellant was tried by the court without a jury and the court found him guilty as charged and that his age was 26 years, and that he should be fined $ 100 and costs and be imprisoned in the Indiana reformatory for a term of not less than one nor more than five years. Judgment was rendered on this finding and from such judgment this appeal is taken. The only assignment of error is that the court erred in overruling appellant's motion for a new trial. The appellant's motion for a new trial contained four specifications of error: (1) The finding of the court is not sustained by sufficient evidence; (2) the finding of the court is contrary to law; (3) error of law occurring at the trial in this that the court erred in overruling defendant's plea in abatement; (4) error of law occurring at the trial in this that the court erred in overruling the defendant's motion to suppress evidence.
It appears from the record that judgment was entered July 28, 1924. The affidavit was filed against appellant on February 23, 1924, in the office of the clerk of the Marion Criminal Court. On March 3, 1924, the appellant appeared in person and by counsel and waived arraignment and entered a plea of not guilty. Afterward, on June 12, 1924, the defendant appeared in said court after a change of venue from the judge had been taken and filed a verified plea in abatement, and afterward, on June 13, 1924, the defendant appeared in person and by counsel, and the prosecuting attorney appeared and the state filed a general denial to the plea in abatement, and the plea in abatement was submitted to the court for trial and evidence heard and the court found in favor of the State of Indiana.
Section 389 Burns 1926, provides that, an answer in abatement must precede, and cannot be pleaded with, an answer in bar, and the issue thereon must be tried first and separately. If the issue be found against the answer, the judgment must be that the party plead over, and against him for all costs of the action up to that time.
Appellant alleges as his third specification of error in his motion for a new trial that the court erred in overruling his plea in abatement. It appears from the record that the plea in abatement was filed after appellant had pleaded not guilty. In the face of the statute, the trial court had no right to permit the appellant to plead in abatement after he had answered in bar. A person who pleads matter in abatement must plead it in accordance with the statutory command and, if he disobeys it, his plea should be rejected on motion. Brink v. Reid (1890), 122 Ind. 257, 23 N.E 770; Watts, Trustee, v. Sweeney (1891), 127 Ind. 116, 26 N.E. 680; Carmien v....
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