Callender v. State

Citation136 N.E. 10
Decision Date23 June 1922
Docket NumberNo. 24085.,24085.
PartiesCALLENDER v. STATE.
CourtSupreme Court of Indiana

OPINION TEXT STARTS HERE

Appeal from Superior Court, Elkhart County; William B. Hile, Judge.

Edward Callender was convicted of unlawfully keeping whisky in his possession with intent to sell, barter, exchange, give away, furnish, or otherwise dispose of the same, and he appeals. Reversed, with instructions to sustain appellant's motion for new trial and for further proceedings not inconsistent with opinion.Harman & Jay, of Elkhart, for appellant.

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

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 the 6th day of January, 1921, charged that—

The appellant at Elkhart county, Ind., “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 the 18th day of February, 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 rendered 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 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.

[1] 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.

[2] 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, 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 Prohibition Law of 1917, § 25. 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, 232 U. S. 383, 34 Sup. 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 Criminal Code, § 213 (U. S. Comp. St. § 10383). 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, Mo., 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 some one 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 that the court should have restored these letters to the accused. In holding them and permitting their use upon the trial, we think prejudicial error was committed.”

[3] We cannot say that this case strengthens the position taken by the state. A careful reading of section 25, p. 27, Prohibition Law of 1917, 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 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...

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14 cases
  • State v. Tonn
    • United States
    • United States State Supreme Court of Iowa
    • January 16, 1923
    ......152, 157 (224 S.W. 860, 13 A. L. R. 1303); Ash v. Commonwealth , 193 Ky. 452 (236. S.W. 1032); Tucker v. State , 128 Miss. 211 (90 So. 845); People v. Marxhausen , 204 Mich. 559 (171 N.W. 557, 3 A. L. R. 1505); People v. Foreman , 218 Mich. 591 (188 N.W. 375); Callender v. State , (Ind.) 136. N.E. 10; State v. Gibbons , (Wash.) 203 P. 390;. Hughes v. State , (Tenn.) 238 S.W. 588. The. Weeks case, supra, is referred to in L. R. A. 1915B,. 834, and cited in Ex Parte Rhodes , 202 Ala. 68, 76. (1 A. L. R. 568, 582, 79 So. 462). See, also, State v. Fowler , ......
  • Moore v. State
    • United States
    • United States State Supreme Court of Mississippi
    • April 6, 1925
    ......23; in which an. automobile was stopped and searched without warrant and. liquor found and the occupant arrested. The court held that. unlawful search for liquor does not became lawful because. liquor is found, and that the evidence thus secured [138. Miss. 122] is inadmissible. Callender v. State (Ind. 1923), 138 N.E. 817; search for liquor under invalid search. warrant, evidence inadmissible. Ash v. Commonwealth . (Ky. 1922), 236 S.E. 1032; evidence in regard to liquor found. by unlawful search inadmissible. Simmons v. Commonwealth (Ky. 1924), 262 S.W. 972; evidence ......
  • Owens v. State
    • United States
    • United States State Supreme Court of Mississippi
    • December 17, 1923
    ......452, 236 S.W. 1032;. Blacksburg v. Beam, 104 S.C. 146, 88 S.E. 441, L. [133 Miss. 770] R. A. 1916E 714; State v. Rowley (Iowa), 187 N.W. 7; People v. Marxhausen, 204 Mich. 559, 171 N.W. 557, 3 A. L. R. 1505; People v. Foreman, 218 Mich. 591, 188. N.W. 375; Callender v. State, (Ind. Sup.),. 136 N.E. 10; State v. Gibbons, 118 Wash. 171, 203 P. 390; Hughes v. State, 145 Tenn. 544, 238 S.W. 588, 20 A. L. R. 639. . . We said. in the Tucker case that the federal supreme court was our. greatest exponent of constitutional law. We add now ......
  • State v. Tonn
    • United States
    • United States State Supreme Court of Iowa
    • January 16, 1923
    ...845;People v. Marxhausen, 204 Mich. 559, 171 N. W. 557, 3 A. L. R. 1505;People v. Foreman, 218 Mich. 591, 188 N. W. 375;Callender v. State (Ind. Sup.) 136 N. E. 10;State v. Gibbons (Wash.) 203 Pac. 390;Hughes v. State (Tenn.) 238 S. W. 588. The Weeks Case, supra, is referred to in L. R. A. ......
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