Callender v. State

• Decision Date: 23 June 1922
• Docket Number: 24,085
• Citation: 138 N.E. 817,193 Ind. 91
• Parties: Callender v. State of Indiana
• Court: Indiana Supreme Court

138 N.E. 817

193 Ind. 91

Callender v. State of Indiana

No. 24,085

Supreme Court of Indiana

June 23, 1922

Rehearing Denied April 5, 1923.

From Elkhart Circuit Court; William B. Hile, Judge.

Prosecution by the State of Indiana against Edward Callender. From a judgment of conviction, the defendant appeals.

Reversed.

Harmon & Jay, for appellant.

U. S Lesh, Attorney-General, Mrs. Edward Franklin White, Deputy Attorney-General, R. C. Minton and Dixon H. Bynum, for the State.

OPINION

Willoughby, J.

The appellant was tried upon two indictments returned by the grand jury of Elkhart county.

In cause No. 881, the indictment returned on January 6, 1921 charged that the appellant at Elkhart county, Indiana, "on or about the 31st day of December, 1920, did then and there unlawfully sell, barter, exchange, give away, furnish and otherwise dispose of certain intoxicating liquors, to wit: whisky to one Ed A. Smith, at and for the price of $ 3."

In cause No. 913, the indictment returned on February 18, 1921, charged that the appellant, Edward Callender, "on or about the 31st day of December, 1920, in the county of Elkhart, and State of Indiana, did then and there unlawfully keep intoxicating liquor, to wit, whisky, with the intent then and there to sell, barter, exchange, give away, furnish and otherwise dispose of the same."

To each of these indictments the defendant entered a plea of not guilty and the causes were consolidated for trial and tried together before the same jury.

In cause No. 881, the jury returned a verdict of not guilty, and in cause No. 913, the jury returned a verdict as follows:

"We, the jury, find the defendant guilty as charged in the indictment and assess his punishment at a fine of $ 100 and that he be imprisoned in the Elkhart county jail for a period of sixty (60) days and we, the jury, petition your honor to suspend the jail sentence during good behavior."

The appellant filed a motion for a venire de novo, alleging that the verdict of the jury is uncertain, indefinite, and ambiguous and is so uncertain that no judgment can be rendered thereon. And for further reason that the verdict contains a petition to the court to suspend the jail sentence during good behavior.

The court overruled this motion to which the defendant excepted. Appellant then filed a motion for a new trial, which was overruled and appellant excepted. Judgment was then rendered on the verdict as follows:

"The court now renders judgment on the verdict heretofore rendered herein, and it is therefore considered, ordered, adjudged and decreed by the court that said defendant, Edward Callender, for the offense by him committed, do make his fine unto the State of Indiana in the penal sum of $ 100 and that he be imprisoned in the Indiana State Penal farm for a period of sixty (60) days, and that he satisfy the costs herein assessed in the sum of $ -----."

From such judgment appellant appeals and assigns as error: (1) The court erred in overruling appellant's motion for a venire de novo; (2) the court erred in overruling appellant's motion for a new trial.

The verdict of the jury is not uncertain and ambiguous. It fixes the defendant's punishment and the clause in it to which the defendant objects is merely a petition to the court to suspend sentence. It is in no sense a part of the verdict. It was improper to place this petition in the verdict, but it does not affect the verdict in any way and is not harmful to the appellant.

It has been held in this state that a motion for a venire de novo will not be sustained unless the verdict is so defective and uncertain that no judgment can be rendered upon it. A verdict, however informal, is good if the court understands it. It is to have a reasonable intendment and is to receive a reasonable construction and is not to be avoided except from necessity. Goodman v. State (1919), 188 Ind. 70, 121 N.E. 826, and cases there cited. The court did not err in overruling the motion for a venire de novo.

Under the assignment of error that the court erred in overruling appellant's motion for a new trial, appellant claims that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. He contends that there was no evidence tending to support the allegation in the indictment that the defendant kept intoxicating liquor at the place charged, except such evidence as was procured by a search of the premises under a search warrant. This contention is not denied in the brief of the state, but such brief contains the following statement: "Search warrants for the discovery of intoxicating liquors are authorized by § 25 of the Prohibition Law of 1917, § 8356a et seq. Burns' Supp. 1918, Acts 1917 p. 15. Any person may make affidavit that he has reason to believe and does believe that liquors may be found on certain premises, and upon such affidavit a search warrant may be issued. Liquors seized under such a warrant are seized lawfully. Even if unlawfully seized, they are contraband." In support of this proposition the attorney-general cites Weeks v. United States (1913), 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B 834, Ann. Cas. 1915C 1177.

In Weeks v. United States, supra, the defendant had been charged with the using of the mails for the purpose of transporting certain coupons representing chances or shares in a lottery or gift enterprise in violation of the Criminal Code, § 10383 U.S. Comp. Stat. 1918, 35 Stat. at L. 1129, § 213, the sentence of fine and imprisonment was imposed. The defendant was arrested by a police officer so far as the record shows without a warrant, at the Union Station in Kansas City, Missouri, where he was employed by an express company. Other police officers had gone to the house of the defendant and, being told by a neighbor where the key was kept, found it and entered the house. They searched appellant's room and took possession of various papers and articles found there, which were afterwards turned over to the United States marshal. Later in the same day police officers returned with the marshal, who thought he might find additional evidence, and, being admitted by someone in the house, the marshal searched the defendant's house and carried away certain letters and envelopes found in the drawer of a chiffonier. Neither the marshal nor the police officers had a search warrant. The defendant before the time for trial filed a petition for the return of his private papers, books and other property so taken. It was held that refusing the return of the papers and permitting them to be used in evidence was a violation of the constitutional rights of the accused under the Fourth amendment; and that in receiving them in evidence over the objection of defendant prejudicial error was committed and the judgment should be reversed. The court in that case, speaking by Justice Day, said: "We therefore reach the conclusion that the letters in question were taken from the house of the accused by an official of the United States acting under color of his office in direct violation of the constitutional rights of the defendant; that having made a seasonable application for their return, which was heard and passed upon by the court, there was involved in the order refusing the application a denial of the constitutional rights of the accused; and the court should have restored these letters to the accused. In holding them and permitting their use on the trial, we think prejudicial error was committed."

We cannot say that this case strengthens the position taken by the state. A careful reading of § 25 of the Prohibition Law of 1917 (Acts 1917 p. 15, supra) will show that such section does not authorize the search and seizure for the express and sole purpose of procuring evidence upon which to base a prosecution. Sections 25, 26, 27, 28, and 29 of the act of 1917 (Acts 1917 p. 15, supra) were intended to provide a means of discovering and seizing liquors kept for an unlawful purpose. They are not intended to provide a means to disclose evidence in a criminal prosecution.

The appellant claimed that the search warrant used in this case was not authorized by law and was not in fact a search warrant and sets forth evidence from the record to show that the alleged search warrant was signed by the chief of police and that no affidavit had been filed before an officer authorized to issue a search warrant, as a basis for such search warrant.

If the property was secured by search and seizure under the pretext of a search warrant, which was invalid for any reason, then the property so seized could not be used as evidence against the appellant and its admission over his objection was...