Callender v. State, No. 24085.

Docket NºNo. 24085.
Citation193 Ind. 91, 138 N.E. 817
Case DateApril 05, 1923
CourtSupreme Court of Indiana

193 Ind. 91
138 N.E. 817

CALLENDER
v.
STATE.

No. 24085.

Supreme Court of Indiana.

April 5, 1923.


Appeal from Superior Court, Elkhart County.

On petition for rehearing. Rehearing granted, opinion modified, and judgment reversed, with directions.


For former opinion, see 136 N. E. 10.

WILLOUGHBY, J.

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

In cause No. 881, the indictments 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 $3.00.”

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 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 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][2] The verdict of the jury is not uncercertain 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

[138 N.E. 818]

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 the 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...

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63 practice notes
  • Wallace v. State, No. 25177.
    • United States
    • Indiana Supreme Court of Indiana
    • June 30, 1927
    ...against whose property the warrant is directed as to its legality.” The affidavit is referred to in the case of Callender v. State (1923) 193 Ind. 91, 138 N. E. 817, as follows: “The law requires the affidavit upon which a search warrant is issued to be filed and to remain on file in the of......
  • Membres v. State, No. 49S02-0701-CR-33.
    • United States
    • Indiana Supreme Court of Indiana
    • June 27, 2008
    ...81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) applied the Fourth Amendment exclusionary rule to state criminal proceedings. In Callender v. State, 193 Ind. 91, 96-97, 138 N.E. 817, 818-19 (1923), we cited the Indiana Bill of Rights as authority for excluding evidence that had been seized without com......
  • State v. Owens, No. 24186.
    • United States
    • Missouri Supreme Court
    • February 11, 1924
    ...adherence to the federal rule. Indiana is listed as against the conclusion have reached. But two recent cases (Callender v. State [Sup.] 138 N. E. 817; Flum v. State, [Sup.] 141 N. E. 353), mentioned in the list, show an unqualified indorsement of the federal I find only 12 states where the......
  • Moore v. State, 24764
    • United States
    • United States State Supreme Court of Mississippi
    • April 6, 1925
    ...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 t......
  • Request a trial to view additional results
61 cases
  • Wallace v. State, No. 25177.
    • United States
    • Indiana Supreme Court of Indiana
    • June 30, 1927
    ...against whose property the warrant is directed as to its legality.” The affidavit is referred to in the case of Callender v. State (1923) 193 Ind. 91, 138 N. E. 817, as follows: “The law requires the affidavit upon which a search warrant is issued to be filed and to remain on file in the of......
  • State v. Owens, No. 24186.
    • United States
    • Missouri Supreme Court
    • February 11, 1924
    ...adherence to the federal rule. Indiana is listed as against the conclusion have reached. But two recent cases (Callender v. State [Sup.] 138 N. E. 817; Flum v. State, [Sup.] 141 N. E. 353), mentioned in the list, show an unqualified indorsement of the federal I find only 12 states where the......
  • Membres v. State, No. 49S02-0701-CR-33.
    • United States
    • Indiana Supreme Court of Indiana
    • June 27, 2008
    ...81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) applied the Fourth Amendment exclusionary rule to state criminal proceedings. In Callender v. State, 193 Ind. 91, 96-97, 138 N.E. 817, 818-19 (1923), we cited the Indiana Bill of Rights as authority for excluding evidence that had been seized without com......
  • Moore v. State, 24764
    • United States
    • United States State Supreme Court of Mississippi
    • April 6, 1925
    ...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 t......
  • Request a trial to view additional results

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