Drake v. State
| Decision Date | 05 April 1929 |
| Docket Number | 24,652 |
| Citation | 165 N.E. 757,201 Ind. 235 |
| Parties | Drake v. State of Indiana |
| Court | Indiana Supreme Court |
Rehearing Denied June 26, 1929.
1. CRIMINAL LAW---Invalid Search Warrant---Motion to Suppress Evidence Obtained by---Should have been Sustained.---Where defendant, before arraignment and plea thereto, filed his verified motion to quash the search warrant whereby the evidence against him was obtained and for the suppression of such evidence because the affidavit upon which the search warrant issued was made on information and belief and without hearing any evidence in support of the affidavit, should have been granted, in the absence of an attack thereon by motion demurrer or answer. p. 236.
2. SEARCHES AND SEIZURES---Invitation to Search.---Statements by defendant to officers to the effect that he had a still then in operation, and giving its location, made when he was confronted by said officers and notified that they had a warrant for the search of his premises, did not constitute an invitation to search the premises (Meno v. State, 197 Ind 16, distinguished). p. 238.
3. ARREST---Cause for Arrest Without Warrant---Competency of Arresting Officers as Witnesses.---Defendant's admission to police officers that he then had a still in operation manufacturing intoxicating liquor, supplemented by the fact that he then led the officers to the location of the still claimed ownership thereof and of the ingredients in use in the distillation, made it the duty of the officers to arrest him without a warrant, and they could testify as to his admission and to his subsequent acts in leading them to the still and the exhibition thereof in operation, including his claim of ownership. p. 238.
4. CRIMINAL LAW---Defendant's Confession of Guilt of Felony---Competency of Witnesses---Information Subsequently Obtained Without Warrant.---After police officers informed defendant that they had a warrant to search his premises, he told them he had a still in operation manufacturing intoxicating liquor and led them to the building in which the still and ingredients for distillation were located, unlocked the door and exhibited to them the still in operation, together with the ingredients for making such liquor, at the same time, claiming to be the owner thereof. This being a felony, it was competent for the officers to testify to the fact of defendant's admission that he was then engaged in the commission of a felony, and as to what they learned from him thereafter, notwithstanding the fact that the search warrant was defective. p. 238.
5. INTOXICATING LIQUORS---Possession and Use of Still---Evidence Held Sufficient.---Evidence held sufficient to sustain a verdict finding defendant guilty of the offense of possessing, controlling and using a still for the manufacture of intoxicating liquor as defined by Acts 1923, ch. 33, 1. p. 238.
6. INTOXICATING LIQUORS---Possession and Use of Still---Objection to Instruction.---In a prosecution for unlawfully possessing and using a still for the manufacture of intoxicating liquor, an objection to an instruction on the ground that it was based on the hypothesis that mere possession of a still for the manufacture of intoxicating liquor was an offense was without merit where the instruction extended to the use of a still as well as to its possession. p. 239.
7. INDICTMENT AND AFFIDAVIT---Sufficiency of---Review on Appeal---Method of Presenting.---An assignment of error that the indictment or affidavit does not state facts sufficient to constitute a public offense presents no question for review on appeal, as that proposition may not be presented for the first time on appeal. p. 240.
8. CRIMINAL LAW---Constitutionality of Statute---Review on Appeal---Method of Presenting.---The constitutionality of the statute defining the offense on which the prosecution is based cannot properly be presented for the first time on appeal, but the question must first be raised in the trial court by a motion to quash the indictment or affidavit or by a motion in arrest of judgment. p. 240.
From Shelby Circuit Court; Frank E. Hutchinson, Special Judge.
Benjamin F. Drake was convicted of unlawful possession, control and use of a still for the manufacture of intoxicating liquor, and he appealed.
Affirmed.
McDaniel & Myers and Norman E. Patrick, for appellant.
U. S. Lesh, Attorney-General, Arnet B. Cronk and Carl Wilde, for the State.
Appellant was adjudged guilty of the offense of possessing, controlling and using a still for the manufacture of intoxicating liquor, as defined by Acts 1923, ch. 33, § 1.
Before arraignment and plea to the charge, appellant filed his verified amended motion to quash the search warrant, and the return of the service thereof, and for an order for the suppression of the evidence obtained by virtue of such warrant and its execution. This motion was submitted to the court for adjudication, without attack by any motion or demurrer, and without answer thereto by the appellee. The court overruled the motion. This matter is presented by a special bill of exceptions. The principal attack made by appellant's motion to quash the search warrant, etc., is that the affidavit upon which the search warrant issued was founded exclusively upon information given to the affiant of the affidavit, and affiant's belief that the information was true, and that the magistrate who issued the search warrant heard no evidence in support of the affidavit to obtain the issuance of the search warrant. The ruling of the court upon appellant's motion upon these facts constituted error. Wallace v. State (1927), 199 Ind. 317, 157 N.E. 657.
The cause was submitted for trial to a jury upon the plea of not guilty, which resulted in a verdict of guilty, and judgment upon the verdict.
At the trial appellee was permitted by the court to introduce in evidence the affidavit for the search warrant, the warrant and return thereon, the still which was exhibited to the officers by appellant, and oral evidence by the officers of what they were shown in connection with the still by appellant, which was a large quantity of corn mash, and that the still was in full operation when exhibited by appellant. The appellant claimed ownership of the still and ingredients of distillation, and said that it was the first distilling he had ever done. All this evidence was admitted over the objections of appellant. At the time the officers presented themselves to appellant upon the premises where the still and materials for distillation were located, and had informed appellant they had a search warrant for these premises, he told the officers that he had a still then in operation and the place of its location. He then led the officers to the small building in the orchard where the still was in operation, unlocked the door and exhibited the still.
One of the appellant's propositions is that his actions before and words spoken to the officers, were not an invitation to search, and that his actions and words were procured by the alleged invalid search warrant. The admission by appellant that he then was in the act of the commission of a felony did not constitute an invitation to search the premises. His admission is in no manner analogous to an invitation. The proposition of law made by appellant applies to cases where there is a mere acquiescence, no matter by what language made, without the open confession of then and there being in the act of the commission of a felony. This case is distinguished from the case of Meno v State (1925), ...
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