Eva v. State , 26074.

Docket NºNo. 26074.
Citation180 N.E. 183, 203 Ind. 340
Case DateMarch 17, 1932
CourtSupreme Court of Indiana

203 Ind. 340
180 N.E. 183


No. 26074.

Supreme Court of Indiana.

March 17, 1932.

Appeal, from Criminal Court, Lake County; Martin J. Smith, Judge.

Nick Eva was convicted of unlawful possession of intoxicating liquor, and of maintaining a nuisance, and he appeals.


George Panea, of East Chicago, for appellant.

James M. Ogden, Atty. Gen., and Robert L. Bailey, Sp. Asst. Atty. Gen., of Indianapolis, for the State.


This is an appeal from a judgment of the Lake criminal court entered on June 29, 1931, in a proceeding, by affidavit, brought by appellee under the provisions of sections 2717 and 2740, Burns' Ann. St. 1926 Statutes, in which appellant was found guilty of two offenses, to wit, (1) unlawful possession of intoxicating liquor, and (2) maintaining a nuisance.

On the day set for trial appellant filed a petition to suppress and reject certain evidence which had been obtained by a search of appellant's premises, by virtue of a search warrant.

Appellee filed an answer in general denial to appellant's petition to suppress, and the court, after hearing evidence, overruled said motion. Trial was had before the court, resulting in a finding of guilt on both counts of the affidavit. Appellant's motion for a new trial was overruled.

[1] On appeal appellant assigns, as an independent error, the overruling of his motion to suppress and reject evidence. It has been held by this court that a motion to suppress and reject evidence is properly presented for review by a motion for a new

[180 N.E. 184]

trial, under the first subdivision of section 2325 Burns' Ann. St. 1926, Acts 1905, c. 169, p. 584, § 282 and not as independent error. Chappelle v. State (1925) 196 Ind. 640-641, 149 N. E. 163;Morgan v. State (1926) 197 Ind. 374-378, 151 N. E. 98:Nelson v. State (1928) 200 Ind. 292, 163 N. E. 95;Onstott v. State (1928) 200 Ind. 37-42, 161 N. E. 267. In the case of Nelson v. State, supra, this court said: “The action of the court in overruling appellant's motion and petition to suppress evidence and quash the search warrant cannot be assigned as an independent error on appeal.”

[2] Appellant's first reason for a new trial is stated thus: (1) “Error of law occurring at the trial in this, to-wit: That the court denied defendant's petition to suppress and reject certain evidence.” It is urged that the question is properly presented by this assignment of error in his motion for a new trial. Appellee contends that such an assignment presents no question for review and cites Biddle v. State (1927) 199 Ind. 284, 157 N. E. 280, 281; Nelson v. State, supra. In the case of Biddle v. State, supra, this exact question was presented and decided. The court said: “The overruling of this motion [meaning motion to suppress] is stated in the motion for a new trial as error of law occurring at the trial and excepted to by the party making the application, while the record shows that the motion was filed and disposed of before the trial began. To present any question *** on this motion it should have been assigned as error under the first clause of § 2325 Burns' 1926, which provides that: ‘The court shall grant a new trial to the defendant for the following...

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20 cases
  • Siebeking v. Ford, No. 18924
    • United States
    • February 20, 1958
    ...Surely he would have been more explicit if he had intended any such innovation. 'The Supreme Court again, March 17, 1932, in Eva v. State [203 Ind. 340], 180 N.E. 183, 184, states: 'Appellant does not set out in his motion for a new trial his reasons for objection to the questions or to the......
  • Loehr v. Meuser, No. 18007
    • United States
    • Indiana Court of Appeals of Indiana
    • June 29, 1950
    ...First National Bank of Cambridge City v. Colter, 1878, 61 Ind. 153; Greer v. State, 1929, 201 Ind. 286, 168 N.E. 581; Eva v. State, 1932, 203 Ind. 340, 180 N.E. 183; Vaughn Building Company v. State of Indiana, 1933, 97 Ind.App. 556, 185 N.E. [120 Ind.App. 636] After the above exhibit had b......
  • Inter-Ocean Cas. Co. v. Wilkins, No. 14147.
    • United States
    • Indiana Court of Appeals of Indiana
    • July 26, 1932
    ...Ind. 386, 168 N. E. 581; [182 N.E. 257]Kenwood Tire Co. v. Speckman (1931) 92 Ind. App. 419, 176 N. E. 29;Eva v. State (Ind. Sup. 1932) 180 N. E. 183. It is also assigned as a cause for a new trial that the court erred in refusing to permit one witness for the defendant to testify on direct......
  • Iterman v. Baker, No. 15501.
    • United States
    • Indiana Court of Appeals of Indiana
    • November 23, 1937
    ...motion for a new trial in order to present the alleged errors on the admission of evidence for review. [11 N.E.2d 68]Eva v. State (1932) 203 Ind. 340, 180 N.E. 183;Sourbier v. Claman (1936) 101 Ind.App. 679, 200 N.E. 721, and authorities there cited. We have considered all questions present......
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