Boyd v. State

• Decision Date: 08 June 1926
• Docket Number: No. 24482.,24482.
• Citation: 152 N.E. 278,198 Ind. 55
• Parties: BOYD v. STATE.
• Court: Indiana Supreme Court

198 Ind. 55

152 N.E. 278

BOYD

v.STATE.

No. 24482.

Supreme Court of Indiana.

June 8, 1926.

Appeal from Vandenburgh Circuit Court.

Rolla Boyd was convicted of transporting intoxicating liquor in an automobile, and he appeals. Reversed, with instructions.

John W. Spencer, Jr., of Evansville, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. E. F. White, Deputy Atty. Gen., for the State.

WILLOUGHBY, J.

This action is based on an indictment returned by the grand jury of Vanderburgh county, Ind., in which the appellant, Rolla Boyd, was indicted for unlawful transportation of intoxicating liquor in an automobile, under the Transportation Act of 1923 (Acts 1923, c. 34). It is charged in the indictment that the appellant, on or about the 18th day of April, 1923, at said county, did then and there unlawfully and feloniously transport intoxicating liquor in a certain vehicle, to wit, an automobile, then and there being.

A motion was made to quash the indictment, alleging that the facts stated in said indictment did not charge a public offense, and that said indictment does not state the offense with sufficient certainty. The questions presented by this motion to quash have been heretofore decided adversely to the contention of appellant. Volderauer v. State, 195 Ind. 415, 143 N. E. 674;Simpson v. State, 195 Ind. 633, 146 N. E. 747;Frey v. State (Ind. Sup.) 147 N. E. 279;Eiler v. State (Ind. Sup.) 149 N. E. 62;Morgan v. State (Ind. Sup.) 151 N. E. 98. The court did not err in overruling appellant's motion to quash the indictment.

Appellant claims in his motion for a new trial that the finding of the court is not sustained by sufficient evidence, and is contrary to law. Appellant says that the only evidence in support of the finding was procured by unlawful search of the automobile used by him, and he made a motion to suppress this evidence, but such motion was not ruled upon by the court, and, when the evidence was offered upon the trial of the case, he objected to its introduction, but it was admitted over his objection and exception.

The evidence most favorable to the state is as follows: Sherman Hamsley testified for the state as follows:

“I am a deputy sheriff, and was such on April 18th. I know defendant, and saw him on April 18th, about 7:30 o'clock driving a taxicab, alone, going up Third street toward Main street. I was in an automobile with John Detroy, and we followed his automobile from Fifth and Chestnut, and at Fifth and Walnut a colored man stepped out of the building there, and he handed somebody in this cab a package with one hand, and took a package in the other hand that looked like a sack. Then he drove off again, and, when he got between Vine and Sycamore and Division, I jumped out of my car, and ran around to the side of the taxicab, and I told him to stop, and I got on the side of the running board, and he did not stop. I had my gun drawn, and picked up that jug of white mule sitting down there beside him in the front seat of the taxicab on the floor. It contained white mule whisky, 110 proof, and is a gray–based, brown–topped clay jug, with a broken handle, with one gallon capacity. This occurred in Vanderburgh county, state of Indiana. Boyd is a married man living with his wife, and is an automobile mechanic. After his arrest, we got a search warrant, and went down and searched his house, but found no whisky. He stopped at my request, and, after he stopped, I asked him to get out, and reached down and got the jug. It had a paper sack around it, and I didn't know what was in it. I had no warrant for the search of this automobile and no warrant for the arrest of Rolla Boyd. I got the jug out of the car before I put him under arrest. I arrested him first because he had no tail light. We didn't follow him because his tail light wasn't burning. I never have arrested a man for failing to have a tail light burning, but would have arrested him for that if I hadn't found the whisky. We followed Boyd because we thought he was hauling whisky, after we saw him exchange those packages at Fifth and Walnut.”

John Detroy testified as follows:

“I met Sherman Hamsley with my automobile, April 18, 1923, early in the evening. We drove to Fifth and Walnut. A taxicab drove up, and a colored man came out and passed something to the taxicab, and took something out of the taxicab, and the taxicab drove off, and I drove Hamsley up to the car, and he got this jug out of the car. He got on the running board of the other car, and found...