Brown v. State, 28651

• Decision Date: 06 June 1951
• Docket Number: No. 28651,28651
• Citation: Brown v. State, 229 Ind. 470, 99 N.E.2d 103 (Ind. 1951)
• Parties: BROWN v. STATE.
• Court: Indiana Supreme Court

Page 103

99 N.E.2d 103

229 Ind. 470

BROWN v.STATE.

No. 28651.

Supreme Court of Indiana.

June 6, 1951.

Albert W. Ewbank, Indianapolis, for appellant.

J. Emmett McManamon, Atty. Gen., Frank E. Coughlin, Depty.Atty. Gen., for appellee.

EMMERT, Justice.

This is an appeal from a judgment on a verdict convicting appellant of burglary in the second degree and grand larceny as charged by indictment in two counts.The error assigned here is the overruling of appellant's motion for new trial.

From the evidence and reasonable inferences properly drawn therefrom, the jury was justified in finding that shortly before daylight on Sunday, the 24th day of July, 1949, appellant broke a skylight and through the same entered the building in the possession of Vernon Doylesat 905 Indiana Avenue, Indianapolis, which was used by him as a dry cleaning shop, and did steal therefrom a fountain pen and money belonging to said Doyles and removed therefrom clothes in the possession of said Doyles for the purpose of being dry cleaned.After appellant had been in the shop he went on Indiana Avenue near Blake Street, and employed the witness Gilbert Lee Hatcher, who was operating an unlicensed taxicab, to drive him in an alley behind the cleaning shop where he stopped, and appellant then picked up the clothes from the shop, and directed Hatcher where to drive, until the cab was stopped at 13th and Yandes Streets on the left side of the street.Appellant got out of the automobile near a stairway.A lady was coming down the stairway, and appellant went around the house to avoid her, and the witness Hatcher then drove his car away, and stopped and reported the incident to two policemen in a police car.Hatcher, his automobile and its contents were taken to police headquarters.Appellant lost his billfold in the car, and one of the policemen recovered it, and then went to the home of appellantat 1311 1/2 Columbia Avenue.In the hallway near appellant's door he had dropped the fountain pen belonging to Doyles, which was recovered by one of the policemen.Appellant identified the wallet as his, and stated his name was Leroy Brown.The policeman placed appellant under arrest for vagrancy, and then searched his home without a search warrant.After the search the police officer seized a light brown striped shirt with a zipper front, which was hanging in the closet, and $4.01 in change which was found in appellant's trousers pocket.

Appellant's counsel objected to the testimony concerning the search of appellant's home and the introduction of the shirt, pen and money in evidence.A preliminary hearing was had on the search in accordance with the procedure approved in Shuck v. State, 1945, 223 Ind. 155, 59 N.E.2d 124.The police officer stated he arrested appellant for vagrancy 'immediately when I got to the apartment.'He had no warrant for his arrest, and did not see him commit a misdemeanor, or a felony.He did not have any information that appellant'was over the age of fourteen, physically able to perform manual labor and had not made reasonable effort to obtain employment,' and he did not 'see or know he had refused to labor for compensation when labor was offered.'He did not 'find him or have any information that he was in a state of vagrancy or practicing common begging.'The policeman knocked on appellant's door several times, and someone said, 'Who is it?'To this question he answered, 'It is the police.'After the door was opened appellant said he had been in bed since a little after midnight, that he hadn't done anything, and he didn't see why he should be arrested.He denied having the shirt, and objected to his arrest and the search.

There was no evidence that the appellant had not made reasonable effort to procure employment or that he had refused labor for compensation when work had been offered him.He was not practicing common begging.At common law, vagrancy consisted of going about from place to place, by a person without visible means of support, who was idle, and who, although able to work for his maintenance, refused to do so, and lived without labor or on the charity of others.66 C.J. 399, § 1.The officer did not find appellant in a state of vagrancy.¹

A peace officer has authority to arrest without a warrant for a misdemeanor committed in his presence.Rucker v State, 1948, 225 Ind. 636, 77 N.E.2d 355.After a lawful arrest has been made, a search of the person of the accused is proper.Campbell v. State, 1926, 198 Ind. 231, 153 N.E. 397.But a peace officer has no authority to arrest for a misdemeanor on mere suspicion it has been or is being committed.Hart v. State, 1924, 195 Ind. 384, 145 N.E. 492.An arrest which is unlawful to begin with is not made lawful by what the officer subsequently finds.Burnett v. State, 1927, 199 Ind. 49, 155 N.E. 209.Nor is the search as an incident to an unlawful arrest made lawful by what the officer later discovers.Morgan v. State, 1926, 197 Ind. 374, 151 N.E. 98;Doncaster v. State, 1926, 197 Ind. 635, 151 N.E. 724.The arrest of appellant was unlawful in its inception, and any search pursuant thereto was unreasonable and in violation of his constitutional rights under § 11 of Article 1 of the Constitution of Indiana.It was error to admit testimony of...