Doncaster v. State

• Decision Date: 13 May 1926
• Docket Number: No. 24660.,24660.
• Citation: Doncaster v. State, 197 Ind. 635, 151 N.E. 724 (Ind. 1926)
• Parties: DONCASTER v. STATE.
• Court: Indiana Supreme Court

197 Ind. 635

151 N.E. 724

DONCASTER

v.STATE.

No. 24660.

Supreme Court of Indiana.

May 13, 1926.

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

Ben Doncaster was convicted of unlawfully and feloniously transporting intoxicating liquor in an automobile, and he appeals.Reversed and remanded, and trial court ordered to sustain motion for new trial.

Emsley W. Johnson, Ryan, Ruckelshaus & Ryan, T. Ernest Maholm, and W. F. Elliott, all of Indianapolis, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward Franklin White, Deputy Atty. Gen., for the State.

TRAVIS, J.

Appellant was charged by indictment with having unlawfully and feloniously transported intoxicating liquor in an automobile.Acts 1923, c. 34, p. 108.The court rendered judgment which imposed a fine of $1,000 and that appellant be imprisoned in the Indiana State Prison for not less than one year nor more than two years, upon the finding of guilty.

Appellant appealed and alleged errors committed by the trial court, (a) in overruling his motion to quash the indictment, (b) in overruling his motion to suppress certain evidence obtained by unlawful search and seizure, and (c) in overruling his motion for a new trial.

The indictments in this case and in Morgan v. State(Ind. Sup.)151 N. E. 98, were based upon the same statute, and worded alike.The objections to the indictment in the case at bar asserted by the motion to quash are identical with the objections made to the indictment in the case referred to.Upon the reasoning and decision concerning the indictment in the Morgan Case, as challenged by the motion to quash the indictment, we hold the indictment good in the case at bar.

[1] After arraignment and before the submission of the case for trial, appellant filed his verified motion to suppress the evidence of the sheriff and deputy sheriffs, concerning all matters and information discovered and obtained by reason of or growing out of and resulting from said unlawful search and seizure; and to suppress all evidence that may be offered in the trial of the cause, the information concerning which was obtained directly or indirectly, or which in any way resulted from the alleged unlawful search and seizure.A search warrant is not involved in this case, for the reason that none was issued.The alleged search and seizure was made without the authority of a warrant.The court overruled the motion to suppress evidence.The question presented will be considered under appellant's objection to questions, and motions to strike out evidence, during the progress of the trial, which objections and motions were overruled by the court, and are presented in a motion for a new trial.

The sheriff of Marion county, Ind., as a witness on behalf of the state, testified that he saw appellant on the national road west of Indianapolis, about 30 minutes past 8 o'clock in the evening of December 14, 1923, at which time he was driving a truck east.On account of the speed at which the truck was moving, the sheriff turned around and overtook appellant in about a mile and one–half, when he turned his searchlight upon appellant.The sheriff asked what was in the truck, which question was not answered, and then the sheriff commanded appellant to open the front of the truck, to which appellant replied that it would not open because it was solid iron.The sheriff then took appellant out of the truck and searched him.After having searched appellant, and after going back to the truck, the sheriff asked him what kind of whisky was in the car.Appellant first refused to answer, and then answered, “red whisky.”The sheriff then placed appellant under arrest, and, after having arrested him, proceeded to look in the truck.Appellant objected to the question asked the witness, “What if anything was in the truck,” because the sheriff (witness) obtained the information about which he was about to testify, without any authority from the defendant, and without right in law, and without warrant so to do.In...