Evans v. State
| Decision Date | 07 December 1926 |
| Docket Number | No. 24728.,24728. |
| Parties | EVANS v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Blackford County; Jesse Sutton, Judge.
Luther Evans was convicted of having in his possession and under his control and use a still and distilling apparatus for the manufacture of intoxicating liquor, in violation of Acts 1923, p. 107, c. 33, and he appeals. Reversed, with instructions.Thomas V. Miller and John T. Walterhouse, both of Muncie, for appellant.
U. S. Lesh, Atty. Gen., for the State.
In the Blackford circuit court appellant was convicted by jury of having in his possession and under his control and use a still and distilling apparatus for the manufacture of intoxicating liquor. Acts 1923, p. 107, c. 33. From a judgment in accordance with the verdict, appellant prosecuted this appeal, and in this court the errors properly assigned and relied on are: The action of the trial court in overruling his motion to quash the affidavit, and, in overruling his motion for a new trial.
[1] The motion to quash the affidavit is for insufficient facts to constitute a public offense, and failure to state the offense with sufficient certainty. The failure to charge that the acts constituting the offense were “feloniously” committed is the omission asserted to be fatal to the affidavit. This court has ruled otherwise. McDaniel v. State (Ind. Sup.) 150 N. E. 50;Simpson v. State, 195 Ind. 633, 146 N. E. 747; Simpson v. State, 196 Ind. 499, 149 N. E. 53.
[2] Appellant also asserts that the statute upon which the affidavit at bar is predicated is invalid, in that it does not sufficiently define the offense, nor sufficiently prescribe the punishment, or fix the place of imprisonment. These questions have been decided contrary to appellant's contention. Wallace v. State, 196 Ind. 509, 149 N. E. 57;Simpson v. State, 195 Ind. 633, 146 N. E. 747.
For a new trial, appellant relies on the refusal of the court to quash the affidavit, the search warrant, and the return of the sheriff thereon, and to suppress the evidence thereby obtained.
The motion to quash and suppress evidence was verified and filed April 7, 1924. The order book entry affirmatively shows that upon the date of the filing of this motion the court, “without hearing any evidence,” overruled it. The motion, generally speaking, makes it appear that the affidavit upon which the search warrant was issued, as also the warrant itself, specifically described a bungalow house and other buildings located on a 60–acre tract of land in a certain section, town, and range alleged to be owned by Louis Evans, while the premises actually searched under the claimed authority of the search warrant, and under which the officers acted, and not otherwise, was a 20–acre tract of land and buildings thereon in another section of land, and almost a mile distant from the land and buildings described in the warrant. It further appears that, at the time of the search, and for more than five years prior thereto, appellant and his wife, Blanche B. Evans, the latter having the title to the 20–acre tract,...
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