Biggs v. State

• Citation: 167 N.E. 129,201 Ind. 200
• Decision Date: 25 June 1929
• Docket Number: No. 24417.,24417.
• Parties: BIGGS v. STATE.
• Court: Supreme Court of Indiana

201 Ind. 200

167 N.E. 129

BIGGS

v.STATE.

No. 24417.

Supreme Court of Indiana.

June 25, 1929.

Appeal from Starke Circuit Court; W. C. Pentecost, Judge.

William Biggs was convicted of larceny, and he appeals. Reversed, with directions.Wm. J. Reed, of Knox, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward Franklin White, Deputy Atty. Gen. (O. S. Boling, of Indianapolis, of counsel), for the State.

MYERS, J.

Appellant, in the court below, by affidavit, was charged with feloniously stealing “three bushels of white field corn,” of the value of $2.40. Section 2452, Burns' 1926; Acts 1905, p. 584, c. 169, § 378, as amended by Acts 1907, p. 86, c. 61. He was tried before a jury, convicted, and sentenced by the court to imprisonment in the state prison for a period of from one to eight years, fined $1, and disfranchised for one year. From that judgment he appealed, and in this court has assigned as errors the action of the Starke circuit court in overruling his motion to require the sheriff of that county to return to him his shoes, taken from him by force, and to suppress their use as evidence at the trial, and in overruling his motion for a new trial. The ruling on the motion to suppress the evidence is also assigned as one of the causes for a new trial. Evidence was heard in support of the motion, and from a special bill of exceptions we learn that on June 2, 1923, appellant was arrested and lodged in the Starke county jail. Thereupon a search of the person of the accused was made by the sheriff, who requested appellant to take off his shoes, which he did, but replaced them on his feet, contrary to the sheriff's demand that they be delivered to him. The sheriff then threatened to blackjack appellant, but, when this threat failed of its purpose, the sheriff called to his assistance four other men, three of whom, including the sheriff, held the accused, while the other two removed his shoes. The motion for the return of the shoes and to suppress was overruled, and over appellant's objections they were introduced in evidence at the trial.

This being a criminal case, appellant makes the point that under the circumstances narrated the search of his person and the seizure of his shoes was unreasonable, and by their admission in evidence he was compelled to be a witness against himself, in violation of his constitutional guaranteed rights under the Fourth and Fifth Amendments to our federal Constitution, and article 1, §§ 11 and 14, Constitution of Indiana.

[1] I. Looking to the foregoing amendments, it must be kept in mind that the first ten, including the Fourth and Fifth, are not concerned with state action (Minneapolis & St. Louis R R. Co. v. Bombolis, 241 U. S. 211, 217, 36 S. Ct. 595, 60 L. Ed. 961, Ann. Cas. 1916E, 505, L. R. A. 1917A, 86), and since the question we are called upon to answer involves the acts of a local officer alone, the Fourth and Fifth Amendments are not applicable to the facts of this case, and no further attention need be given them.

[2] II. As to the state constitutional inhibitions, appellee is relying upon a statement of the sheriff at the trial to the effect that appellant voluntarily surrendered his shoes. This testimony is so extravagantly out of line with other statements of the witness, and the testimony of all the other witnesses who assisted him in the shoe removal incident, that there is no escape from the conclusion that appellant's shoes were taken from him by force. But, even if it be conceded that appellant, on demand of the officers, surrendered his shoes to him, such action on the part of appellant would not amount to a waiver of his constitutional protection. Meno v. State, 197 Ind. 16, 164 N. E. 93. He had, however, been lawfully arrested, and was in the Starke county jail at the time his shoes were forcibly taken from him at the command of the sheriff.

[3] Tracks made by persons near the Ream corncrib, from which, in the opinion of witnesses, corn had been taken, had a distinctive appearance and corresponded with the peculiar features of the shoe tracks made by appellant in the presence of those engaged in locating the thief. Under these circumstances, and the fact that appellant had been arrested, we have no hesitancy in holding that the sheriff was justified in searching the person of appellant without a search warrant. Such action on the part of the officer in charge of the prisoner must be allowed, not only as a precaution against the presence of weapons or instruments of escape, but also for any articles which would tend to connect the accused with the crime alleged to have been committed. Haverstick v. State, 196 Ind. 145, 147 N. E. 625;Thornton v. State, 117 Wis. 338, 93 N. W. 1107, 98 Am. St. Rep. 924;Myers v. State, 97 Ga. 76, 25 S. E. 252;State v. Graham, 74 N. C. 646, 21 Am. Rep. 493.

In the instant case the shoes in question were in plain view of the sheriff, who was advised as to the similarity of the tracks made by them and the ones made near the Ream crib. An article obviously in sight excludes the thought of a search for it. Hence we conclude that no search warrant was necessary for authority of the sheriff to search the person of the prisoner.

[4] Now, as to the claim that appellant was “compelled to testify against himself.” If appellant had been compelled to do or say anything out of court that might tend to connect him with the crime, there would be room for the insistence that he...