Drake v. State
| Decision Date | 05 April 1929 |
| Docket Number | No. 24652.,24652. |
| Citation | 165 N.E. 757,201 Ind. 235 |
| Parties | DRAKE v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Shelby Circuit Court.
Benjamin D. Drake was convicted of possessing, controlling, and using a still for the manufacture of intoxicating liquor, and he appeals. Affirmed.
McDaniel & Myers, of Shelbyville, and Norman E. Patrick, of Indianapolis, for appellant.
U. S. Lesh, Atty. Gen., and Arnet B. Cronk and Carl Wilde, both of Indianapolis, 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 section 1, c. 33, p. 107, Acts 1923.
[1] Before arraignment and plea to the charge, appellant filed his verified 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 rule of the court upon appellant's motion upon these facts constituted error. Wallace v. State, 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.
[2][3][4][5] 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 by 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, 197 Ind. 16, 164 N. E. 93, in which latter cases there was respectful acquiescence to the law, but not an admission of guilt. Upon the admission made to the officers, it was their duty to arrest appellant without a warrant of arrest. After the admission of the act of then committing a felony, appellant led the officers to see the still; they did not search for the still. It is therefore competent for the officers to testify to the fact of the admission made, and, as well, of the exhibition of the still in operation and the ingredients of distillation. The introduction of the evidence upon the ground of the search warrant and a search thereunder over objection would be erroneous, if that ground of objection stood alone, because the search warrant was subject to the motion to quash it; but that ruling becomes harmless because the evidence, unnecessary to sustain the verdict. was the evidence of appellant's admission of then committing a felony, and his exhibiting thereafter the instruments by which he was accomplishing the unlawful and felonious act. The evidence was competent for that reason. There is sufficient competent evidence to sustain the verdict of guilty.
[6] Complaint is made of instruction No. 1, given by the court, for the reason that it is based upon the hypothesis that the mere possession of a still for the manufacture of intoxicating liquor is an offense under the statute. The instruction extends to the use of the still as well as to its mere possession. The objection to the instruction does not embrace the instruction as a whole. The part of the instruction not embraced in the objection to it, defeats the objection. Complaint is made of instruction 15. This instruction advised the jury that under the laws, both national and state, appellant and his property were not subject to search...
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