Burnett v. State

• Decision Date: 16 February 1927
• Docket Number: No. 24710.,24710.
• Citation: 199 Ind. 49,155 N.E. 209
• Parties: BURNETT et al. v. STATE.
• Court: Indiana Supreme Court

199 Ind. 49

155 N.E. 209

BURNETT et al.

v.STATE.

No. 24710.

Supreme Court of Indiana.

Feb. 16, 1927.

Appeal from Criminal Court, Marion County; James A. Collins, Judge.

Joseph Burnett and others were convicted of transporting intoxicating liquor in an automobile, and they appeal. Affirmed.

Emsley W. Johnson, Asche & Spaan, and W. F. Elliott, all of Indianapolis, for appellants.

U. S. Lesh, Atty. Gen., for the State.

WILLOUGHBY, J.

This was a prosecution by the state of Indiana on an affidavit charging the appellants with transporting intoxicating liquor in an automobile, in violation of an act concerning intoxicating liquors and declaring an emergency, being chapter 34, p. 108, Acts 1923.

Each of the appellants filed a separate motion to quash the affidavit, and also a motion to suppress certain evidence, alleged to have been obtained by unlawful search and seizure. The appellee filed a general denial to the motion to suppress the evidence, and a preliminary hearing was held and evidence introduced on that issue. The court overruled each of said motions to suppress evidence, and proper exceptions were taken. The court overruled the motion of appellants to quash the affidavit, to which each of the appellants duly excepted. The court then heard the evidence on the several pleas of not guilty, and found all the defendants guilty as charged, and rendered judgment pursuant to said finding, from which judgment this appeal is taken.

The appellants filed a separate and several motion for a new trial, which was overruled,and exceptions duly taken by each of them. The errors relied on by each of the appellants for reversal are the following: (1) Error of the court in overruling the motion of appellants and each of them to quash the affidavit. (2) Error of said court in overruling the motion of appellants and each of them to suppress evidence obtained by unlawful search and seizure. (3) Error of said court in overruling the separate and several motion of appellants for a new trial.

[1][2][3] Each of the appellants filed a motion to quash the affidavit for the reason that the facts stated therein do not constitute a public offense, because the statute, under which said affidavit is drawn, is uncertain and void in so far as it relates to the transportation of intoxicating liquor, for the reason that the title of the act makes no mention of the transportation of intoxicating liquor, nor any mention of penalties for the violation of its provisions; (2) that said act is void, under article 4, § 19, of the Indiana Constitution, which provides that every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; (3) that the subject–matter and general character of the act are not fairly expressed in the title of said act; (4) that the same session of the Legislature passed an act making transportation of intoxicating liquor a misdemeanor, and the statute under which this affidavit is drawn makes the transportation of such liquor a felony. That the two are inconsistent and in conflict, and therefore void.

These objections to the affidavit, raised by these appellants upon their motion to quash, have been sufficiently answered adversely to the contentions of appellants by the decisions of this court. See Davy v. State, 195 Ind. 74, 144 N. E. 532;Asher v. State, 194 Ind. 553, 142 N. E. 407, 143 N. E. 513;VolderaDuer v. State, 195 Ind. 415, 143 N. E. 674;Gafill v. Bracken, 195 Ind. 551, 145 N. E. 312, 146 N. E. 109;Haverstick v. State, 196 Ind. 145, 147 N. E. 625. The court did not err in overruling the motion to quash the affidavit.

The appellants claim that the court erred in overruling their separate and several motion for a new trial. Questions presented by that motion are, that the finding of the court is contrary to law, and the finding of the court is not sustained by sufficient evidence. It is claimed that the finding of the court is not sustained by sufficient evidence because the only evidence tending to support the finding is evidence procured by unlawful search and seizure and in violation of appellants' constitutional rights. Each appellant claims that the evidence procured by the search and seizure of the Dodge truck should not have been admitted in evidence against these appellants, because this evidence was procured by unlawful search and seizure, in violation of their rights under the Constitution of the state of Indiana.

[4] In this case the officers had no warrant for the arrest of the defendants, or either of them, and they had no search warrant authorizing them to search the automobiles in possession of appellants, when arrested. Evidence procured by an officer by unlawful search and seizure is not admissible against a defendant. Batts v. State, 194 Ind. 609, and cases there cited. But it has been held that a peace officer may arrest without warrant, where he has reasonable and probable cause for believing that a felony is being or has been committed by the person arrested. Thomas v. State, 196 Ind. 234, 146 N. E. 850. The question then presented is, Did the officers have reasonable and probable cause for believing that a felony had been committed, or was being committed, at the time the arrest was made? Boyd v. State (Ind. Sup.) 152 N. E. 278; Thomas v. State, supra; Doering v. State, 49 Ind. 56, 19 Am. Rep. 669; Burns' R. S. 1926, § 2176.

The evidence on the issue raised by the motion to suppress evidence is, substantially, as follows: A lieutenant in the police department of Indianapolis testified that he and two other officers arrested the appellants. That he had information that the defendants were committing a felony before he arrested them. He says that when they were arrested it was about 11:30 on...