Delong v. State
| Decision Date | 04 October 1929 |
| Docket Number | 25,297 |
| Citation | 168 N.E. 22,201 Ind. 302 |
| Parties | DeLong v. State of Indiana |
| Court | Indiana Supreme Court |
1. INTOXICATING LIQUORS---Transporting in Automobile---Evidence Sufficient to Sustain Conviction.---Defendant and another were seen by deputy sheriffs driving an automobile at a high rate of speed, were stopped and arrested for speeding, and after the arrest, the officers, having discovered the odor of alcohol about the car, asked the defendant how much liquor he had, to which he responded "twenty-three cans." The officers searched the car and found 23 cans (115 gallons) of alcohol, a rifle, which was loaded with flat-nosed cartridges---known as "dum-dum" cartridges. The defendant, having been arrested before by the same officers endeavored to obtain his release by agreement with the officers, asking if there was not some way to "square this up." Held, that the evidence was sufficient to sustain conviction for transporting intoxicating liquor in an automobile. p. 306.
2. CRIMINAL LAW---Evidence---Affidavit Charging Crime---Indorsement Showing Discharge of Defendant's Companion---Admissibility.---In a prosecution for transporting intoxicating liquor in an automobile, a certified copy of an affidavit filed in the municipal court charging the defendant's companion at the time of their arrest with violating the automobile-speed law and indorsed "Discharged" was properly excluded, since a judgment as shown by the court's docket is the best evidence of such judgment, and a pleading, though generally admissible in evidence, should not be received to prove action of the court in the absence of a showing that the record of such action is unavailable. p. 307.
3. CRIMINAL LAW---Evidence---Affidavit Charging Defendant's Companion with Crime---Indorsement Showing Acquittal---Admissibility.---Such affidavit (or a copy thereof) was also properly excluded because a record showing the discharge of defendant's companion would be no evidence that the defendant was acquitted of the same charge p. 307.
4. CRIMINAL LAW---Evidence---Affidavit Charging Defendant's Companion with Crime---Indorsement Showing Acquittal---Exclusion Proper, because Irrelevant.---In a prosecution for transporting intoxicating liquor in an automobile (2720 Burns 1926), where the automobile was searched after the defendant and his companion were arrested for speeding, a certified copy of an affidavit filed in municipal court charging the companion with violating the speed law, marked "Discharged," was properly refused, since the question of whether defendant was prosecuted or convicted is not conclusive of the question of whether the arrest was made on probable cause. p. 307.
5. ARREST---Probable Cause for Arrest---Violating Automobile Speed Law---Acquittal not Evidence of Want of Probable Cause.---Where it appeared to police officers following an automobile that it was being driven at a greater speed than was reasonable and prudent (10140 Burns 1926), the officers had reasonable and probable cause for making an arrest for violation of the automobile law, and the fact that defendant's companion in the car was "discharged" or even a finding that defendant was not guilty of speeding would not invalidate the arrest, as an acquittal is not prima facie evidence of want of probable cause for making an arrest. p. 307.
6. ARREST---Probable Cause for Arrest---Does not Depend on Conviction.---Probable cause for making an arrest cannot be made to depend upon the establishing of the crime for which the accused was arrested. p. 307.
7. SEARCHES AND SEIZURES---Search Without Warrant---After Arrest Lawful---Extends to Automobile Operated by Accused.---A person lawfully arrested for a criminal offense may be searched without a warrant, and the search may extend to an automobile which he was operating at the time. p. 308.
8. INTOXICATING LIQUOR---Transporting in Automobile---Search After Lawful Arrest---Liquor Found in Car Competent Evidence.---Where the driver of an automobile was lawfully arrested for speeding and the arresting officers searched the automobile, evidence consisting of intoxicating liquor found in the car was competent in a prosecution for unlawfully transporting intoxicating liquor in an automobile in violation of 2720 Burns 1926. p. 308.
9. INTOXICATING LIQUORS---Transportation in Automobile---Presence of Liquor Discovered by Senses of Smell, Sight and Sound---Testimony Competent.---Officers who smelled the odor of alcohol coming from an automobile (the season of the year precluding the possibility of the odor being from an anti-freeze solution), and who saw in the car a can of alcohol, the appearance of which was well known to them as officers, and heard the defendant say he had in the car 23 cans of alcohol, had reasonable and probable cause to believe that the felony of unlawfully transporting intoxicating liquor (2720 Burns 1926) was being committed in their presence and were thereby justified in searching the defendant's automobile without a search warrant. p. 308.
10. CRIMINAL LAW---Evidence---Motion to Strike Out---Part of Answer Not Responsive to Question.---In a prosecution for unlawful transportation of intoxicating liquor a witness for the State, answering a question as to what was found in defendant's car, viz.: a rifle, 23 cans of alcohol, and one and one-half gallons of roofing nails, added "They throw out the nails whenever anyone gets after them." Held, that although last portion of the answer was not responsive to question and was an expression of witness' belief or conclusion, its inclusion was harmless in view of the very plain state of facts in the case. p. 309
11. INDICTMENT AND AFFIDAVIT---Exception to Statute---Necessity of Negativing Exception.---Where an offense is defined by statute, but an exception is made in a subsequent clause of the statute, it is not necessary for the prosecutor to negative the exception by alleging that the defendant does not come within the exception; if he does come within the exception, that is a matter of defense, which the defendant must prove. p. 309.
12. INTOXICATING LIQUORS---Transportation in Automobile---Indictment---Negativing Exception in Statute.---In a prosecution for unlawfully transporting intoxicating liquor in an automobile (2720 Burns 1926) the indictment need not negative the exception in the proviso to the section to the effect that the statute does not apply to the transportation of intoxicating liquor for such purposes or uses as are not unlawful, as such fact would constitute a defense which must be proved by the defendant. p. 309.
13. CRIMINAL LAW---Motion to Abate the Action---Held Insufficient as Stating Conclusions---Properly Overruled.---A verified motion, entitled a "Plea in Abatement," was properly overruled where it merely alleged that the indictment was found solely on evidence obtained by an illegal search, that the officers making the search had no probable cause for making the search, that no evidence existed of a law violation except that obtained by an illegal search, as such averments were mere conclusions of the pleader and not statements of facts. p. 310.
14. CRIMINAL LAW---Plea in Abatement---Averring Conclusions of the Pleader---Motion to Abate Properly Overruled.---In a prosecution for unlawfully transporting intoxicating liquor in an automobile (2720 Burns 1926), a plea in abatement alleging that the indictment was found solely on evidence obtained by an illegal search; that the officers making the search had no probable cause for searching the car; that no evidence existed of a law violation except that obtained by an illegal search, was insufficient, because it did not anticipate and exclude all such matter as would, if alleged by the State, defeat the plea, such as defendant's arrest for speeding before the search or arrest for the felony of transporting intoxicating liquor in an automobile. p. 310.
15. CRIMINAL LAW---Motion to Abate the Action---Insufficient as a Motion to Suppress the Evidence.---A verified motion in the form of a plea in abatement, praying that the action be abated, but not asking that the evidence obtained by an illegal search be suppressed, was insufficient as a motion to suppress. p. 310.
16. CRIMINAL LAW---Plea in Abatement---Alleging "No Legal Evidence Before Grand Jury"---Review of Competency of Evidence Not Permitted.---When an indictment has been returned into open court, it is conclusive evidence of the regularity of the finding, and it is not competent to inquire into the character of the evidence before the grand jury. It necessarily follows that the court cannot review the competency of such evidence under a plea in abatement alleging that "no legal evidence was introduced before the grand jury." p. 310.
From Marion Criminal Court (60,564); James A. Collins, Judge.
Charles DeLong was convicted of the unlawful transportation of intoxicating liquor in an automobile, in violation of § 2420 Burns 1926, and he appealed.
Affirmed.
Robbins, Strayer & Robbins, for appellant.
Arthur L. Gilliom and James M. Ogden, Attorney-Generals, Edward J. Lennon, Jr., and E. Burke Walker, Deputy Attorney-Generals, for the State.
Appellant was tried by the court under an indictment which charged the unlawful transportation of intoxicating liquor (under Acts 1925, ch. 48, § 7, § 2720 Burns 1926), and was found guilty, fined and sentenced to imprisonment. He assigns as error the sustaining of a demurrer to his plea in abatement, and the overruling of his motions to quash the indictment and for a new trial; in the latter, it being alleged that the finding of the court is not sustained by sufficient evidence, and is contrary to law, and that the...
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