Eiler v. State

• Citation: 149 N.E. 62,196 Ind. 562
• Decision Date: 13 October 1925
• Docket Number: No. 24596.,24596.
• Parties: EILER v. STATE.
• Court: Supreme Court of Indiana

196 Ind. 562

149 N.E. 62

EILER

v.STATE.

No. 24596.

Supreme Court of Indiana.

Oct. 13, 1925.

Appeal from Circuit Court, Delaware County; Clarence W. Dearth, Judge.

Jesse Eiler was convicted of transporting intoxicating liquor, and he appeals. Reversed, with directions to sustain a motion for new trial.

Walterhouse & Miller, of Muncie, for appellant.

U. S. Lesh, Atty Gen., for the State.

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.

[1][2] The statute charged to have been violated (Acts 1923, § 1, c. 34, p. 108) is constitutional and valid, and the affidavit was sufficient. Volderauer v. State, 195 Ind. 415, 143 N. E. 674;Simpson v. State, 195 Ind. 633, 146 N. E. 747;Frey v. State (Ind. Sup.) 147 N. E. 279;Guetling v. State (Ind. Sup.) 148 N. E. 146.

[3] 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.

[4] 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 no evidence tending to prove that the officers had a search warrant, or that they knew any facts from which they believed and had reason to believe that an automobile, carrying intoxicating liquor, was being driven along that road which responded or would respond to signals made by dimming the lights of a car coming from the other direction and flashing them on again, or that they knew or from any cause had reason to believe before the search was made, or until the whisky actually was found by searching the car after it was stopped and the occupants had been compelled to get out, that defendant or the car he was driving was carrying intoxicating liquor, or that before the search was made the officers had placed defendant or his wife under arrest, or knew or had reason to believe that he or she was guilty of any offense for which they were subject to arrest. The officers testified that they had no warrant for the arrest of either of them, and had no warrant to search their automobile, and that the arrests were made after the whisky was found in their car.

The admission in evidence of testimony as to what was discovered by searching defendant's car under the circumstances, and of the jars and contents obtained by means of such search, is complained...