Eiler v. State

• Citation: 149 N.E. 62,196 Ind. 562
• Decision Date: 13 October 1925
• Docket Number: 24,596
• Parties: Eiler v. State of Indiana
• Court: Supreme Court of Indiana

149 N.E. 62

196 Ind. 562

Eiler v. State of Indiana

No. 24,596

Supreme Court of Indiana

October 13, 1925

1. INTOXICATING LIQUORS.---Act of 1923 making transportation of liquor in automobile a felony was constitutional.---The act of 1923 (Acts 1923 p. 108) making the transportation of intoxicating liquor in an automobile a felony was constitutional and valid. p. 564.

2. INTOXICATING LIQUORS.---Affidavit charging transportation of liquor in automobile held sufficient.---An affidavit charging that, at time and place named, the defendant did unlawfully and feloniously transport intoxicating liquor in an automobile then and there driven by the defendant was sufficient. p. 564.

3. INTOXICATING LIQUORS.---Instruction defining word "transport" as removal from one place to another not misleading as applied to the evidence.---In a prosecution for transporting intoxicating liquor, an instruction that the word "transport" meant "to remove from one place to another" was not misleading where the only evidence that the defendant "trans- ported" any liquor was that he drove along a highway in an automobile containing intoxicating liquor. p. 564.

4. SEARCHES AND SEIZURES.---Authority of officer, without warrant, to search person and vehicle of one actually committing felony stated.---The authority of a peace officer without a warrant, to arrest a person engaged in the actual commission of a felony, and to search him and his vehicle recently or at the time being used in its commission, depends upon whether the officer has reasonable and probable cause to believe, and act on the belief, that a felony is being or has been recently committed by such person or by means of the articles that are in the vehicle or on the person searched p. 567.

5. SEARCHES AND SEIZURES.---Specific search of automobile for intoxicating liquor held to be unreasonable and forbidden by the constitution.---A search by officers of defendant's automobile, made without a search warrant, before defendant had been placed under arrest for any cause, without any probable cause to believe that liquor was being transported by defendant in said car or that a felony was being committed, constitutes an "unreasonable" search of the person and effects of the driver of the automobile forbidden by Art. 1, 11, of the Constitution. p. 569.

6. CRIMINAL LAW.---Information and liquor obtained by officers in unlawful search of automobile should be excluded in trial of driver on charge of transporting liquor.---Information obtained by officers making an unlawful search of an automobile, and intoxicating liquor found in such search, should be excluded, on proper objection made, in the trial of the driver of such automobile on the charge of feloniously transporting liquor therein. p. 569.

From Delaware Circuit Court; Clarence W. Dearth, Judge.

Jesse Eiler was convicted of transporting intoxicating liquor in an automobile, and he appeals.

Reversed.

Walterhouse & Miller, for appellant.

U. S. Lesh, Attorney-General and Ethan A. Miles, for the State.

OPINION

Ewbank, J.

A motion to quash each count of the affidavit was overruled, and evidence having been heard, the jury returned a verdict finding the defendant "guilty of transporting intoxicating liquor as charged." Under his first assignment of errors, appellant attacks the sufficiency of the first count, which charged that, at a time and place named, the defendant and Myrtle Eiler "did then and there unlawfully and feloniously haul and transport intoxicating liquor in an automobile then and there being driven by the said Jesse Eiler and Myrtle Eiler," etc.

The statute charged to have been violated (§ 1, ch. 34, Acts 1923 p. 108) is constitutional and valid, and the affidavit was sufficient. Volderauer v. State (1924), 195 Ind. 415, 143 N.E. 674; Simpson v. State (1925), 195 Ind. 633, 146 N.E. 747; Frey v. State (1925), ante 359, 147 N.E. 279; Guetling v. State (1925), post 643, 148 N.E. 146.

Appellant asked, and upon his request, the court gave, an instruction (in part) as follows: "5. * * * The word transport means to carry or convey from one place or country to another. And in this case unless you find from the evidence, beyond a reasonable doubt, that the defendants were carrying or conveying from one place to another the intoxicating liquor found in their possession, you should return a verdict of not guilty." And, of its own motion, the court also gave an instruction (also numbered 5) stating that "the term 'transport' as used in this statute means to carry over or across, or to convey from one place to another or (our italics) to remove from one place to another." Appellant insists that the definition of "transport" as meaning "to remove from one place to another" tended to mislead the jury into the belief that any movement of intoxicating liquor, however slight, would constitute transportation. The only evidence that appellant "transported" any intoxicating liquor was that he drove along a public highway in an automobile, with some fruit jars that contained whisky lying on the seat of the car. As applied to such evidence, when construed in connection with the direction to find a verdict of not guilty unless defendant was found to have been "carrying or conveying from one place to another the intoxicating liquor" in question, the words complained of could not have misled the jury to appellant's prejudice. This case presents no question as to whether or not the words "to remove from one place to another," as used in this definition of "transport," could mislead a jury if there had been evidence that defendant "removed" a bottle of whisky from one pocket in his coat to another, or from one shelf to another in his pantry. There was no such evidence. And it is not necessary for us to consider and we do not decide whether or not such an instruction might constitute reversible error as applied to evidence of facts different from those proved in the case at bar.

A question is presented for decision which arises out of the following facts: The evidence showed, without dispute, that two deputy sheriffs and two policemen were driving west on a highway in or near the city of Muncie, just after dark, when they saw the lights of what proved to be a one-seated automobile coming from the west, about a quarter of a mile away; that the officers dimmed the lights of their car and immediately turned them on, bright, again, and the driver of the approaching automobile did the same; that the officers again dimmed their lights and turned them on, and once more the driver of the other car did the same; that the cars were approaching each other from opposite directions while this was being done, and, as they came up beside each other, the officers "jumped out and stopped defendant's car" and "blockaded the road"; that defendant was sitting behind the wheel and driving the other automobile when the officers got to it, with Myrtle Eiler (his wife) beside him; that the officers commanded both of them to get out, and, when they did so, looked in the car seat; and over objections and exceptions by defendant witnesses were permitted to and did testify that on the cushion behind where the wife had been sitting in the car were found two glass fruit jars which, on examination, were each found to contain a quart of "white mule whisky, of strong alcoholic content"; and over a further objection and exception, the jars and contents were introduced and admitted in evidence. There was...