Biddle v. State , 24811.
| Citation | 157 N.E. 280,199 Ind. 284 |
| Decision Date | 29 June 1927 |
| Docket Number | No. 24811.,24811. |
| Parties | BIDDLE v. STATE. |
| Court | Supreme Court of Indiana |
OPINION TEXT STARTS HERE
Appeal from Criminal Court, Marion County; W. W. Thornton, Judge.
Morris Biddle was convicted of unlawfully possessing and using distilling apparatus, and he appeals. Affirmed.
Holmes & McCallister, of Indianapolis, for appellant.
Arthur L. Gilliom, Atty. Gen., and Edward J. Lennon, Jr., and Virgil E. Whitaker, Deputy Attys. Gen., for the State.
The appellant was prosecuted by affidavit for a violation of section 1, c. 33, p. 107, of the Acts of 1923. The charging part of the affidavit is as follows: That Morris Biddle, on or about the 10th day of January, 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 the 23d day of February, 1924, in the office of the clerk of the Marion criminal court. On the 3d day of March, 1924, the appellant appeared in person and by counsel, and waived arraignment, and entered a plea of not guilty. Afterward, on the 12th day of June, 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 the 13th day of June, 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.
[1][2] 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, 122 Ind. 257, 23 N. E. 770;Watts v. Sweeney, 127 Ind. 116, 26 N. E. 680, 22 Am. St. Rep. 615;Carmien v. Cornell, 148 Ind. 83, 47 N. E. 216. The same result was reached in this case by overruling his plea in abatement. The court did not err in overruling such plea.
[3] Afterward, on the 28th day of July, 1924, the defendant appeared in person and by counsel, and, with permission of the court, withdrew his plea of not guilty, and filed a motion to suppress evidence. In such motion the evidence sought to be suppressed is described as follows, to wit: Certain implements, coils, containers, pipes, and stoves alleged to be implements for the manufacture of intoxicating liquor and distilling apparatus; also barrels, containers, and contents thereof alleged to be mash for the manufacture and distillation of intoxicating liquor, for the reason that said things above described were taken by police officers of the city of Indianapolis, without due process of law. That in said search said police officers seized the things hereinabove described, arrested the defendant, and now propose to use said things so unlawfully seized as evidence against the defendant in the trial of this cause for the purpose of...
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