Frye v. State
| Decision Date | 11 May 1926 |
| Docket Number | 24,655 |
| Citation | 151 N.E. 728,197 Ind. 615 |
| Parties | Frye v. State of Indiana |
| Court | Indiana Supreme Court |
1. CRIMINAL LAW.---State's answer to accused's motion to suppress evidence held to aver facts sufficient to warrant officers in making arrest and seizing implements and appliances in use in committing a felony.---In a prosecution for having possession of a still for the manufacture of intoxicating liquor and using it in such manufacture, a pleading filed by the state as an answer to a motion by the accused to suppress evidence obtained by an alleged unlawful search and seizure, which alleged that said search and seizure were made by members of a horse-thief detective association acting as constables, on reliable information that accused was then engaged in the act of making intoxicating liquor in violation of Acts 1923 p. 107, which constituted a felony, averred facts sufficient to warrant such officers in making the arrest and seizing the implements in use in committing the felony. p. 617.
2. SEARCHES AND SEIZURES.---Constitutional right to be secure against unreasonable search and seizure is personal right and can only be asserted by one whose right has been invaded.---The constitutional right to be secure against unreasonable search and seizure, guaranteed by Art. 1, 11, of the State Constitution, 63 Burns 1926, 56 Burns 1914, is a personal right and cannot be asserted by others than the person whose right is invaded. p. 620.
3. CRIMINAL LAW.---Seizure of intoxicating liquor and distilling, apparatus with its contents, in which defendant had no interest, by officers in making raid on a still located on a farm of which defendant had no possession or control, did not violate his constitutional rights, and such articles were admissible in evidence against him on a charge of having possession of the still for the manufacture of intoxicating liquor, where he was present at the time of the raid, though facts warranting search and seizure without warrant were not shown.---The seizure of intoxicating liquor and distilling apparatus, with its contents, in which the defendant had no interest, by officers in making a raid on a still located on a farm of which defendant had no possession or control, did not violate defendant's constitutional rights, and such articles were admissible in evidence against him, on a charge of having possession of the still for the manufacture of intoxicating liquors, where he was present at the time of the raid, though facts warranting a search and seizure without a search warrant were not shown p. 621.
4. INTOXICATING LIQUORS.---Mere presence of an accused where a still was in operation not sufficient evidence to sustain conviction for possessing and using a still for manufacture of liquor.---The mere presence of an accused at the place where a still was in operation in the manufacture of intoxicating liquor is not sufficient evidence to justify conviction for possessing and using a still for the manufacture of intoxicating liquor, especially where a reasonable explanation of his presence was made which was consistent with no purpose of wrongdoing. p. 621.
From Daviess Circuit Court; Milton S. Hastings, Judge.
Edward Frye was convicted of unlawful possession and use of a still and distilling apparatus for the manufacture of intoxicating liquor, and he appeals.
Reversed.
Alvin Padgett, for appellant.
U. S Lesh, Attorney-General and Mrs. Edward Franklin White, Deputy Attorney-General, for the State.
Appellant and another, in the court below, were charged by affidavit with the unlawful possession, control and use of a still and distilling apparatus for the manufacture of intoxicating liquor, in violation of § 1, Acts 1923 p. 107.
Appellant was separately tried by a jury, convicted, and judgment thereafter rendered on the verdict. His verified motion to suppress certain alleged evidence and his demurrer to appellee's answer thereto for want of facts were each overruled. The ruling on the demurrer to appellee's answer, and the overruling of appellant's motion for a new trial are each assigned as error.
There is no attempt to question the ruling on the motion to suppress. However, each item of alleged evidence sought to be suppressed by appellant's motion was admitted over his objection and is presented for review by his motion for a new trial. The ruling on the demurrer to the answer for want of facts is sought to be presented both by an assignment of error and as one of the causes for a new trial.
The answer of the state admitted that the raid was made by four horse thief constables without a search warrant or permission to search the real estate where the distilling apparatus was found. In substance, it averred that the distilling apparatus so seized was at that time in possession of and being operated by appellant; that the search and seizure was made by these officers on information that the defendants were then engaged in the act of making intoxicating liquor, in violation of law, and that all the acts of these four persons were executed by virtue of their authority as such constables; that no unnecessary force or means was used in effecting the arrests, or in seizing the distilling apparatus, which is being retained by the sheriff to be used as evidence at the trial of the defendants.
To distill intoxicating liquor for use in violation of law is by statute made a felony. § 1, supra. The answer averred facts sufficient to warrant officers empowered to apprehend felons engaged in the act of committing a felony in their presence, or brought to their attention by reliable information, to pursue and arrest them, and it was not error to overrule the demurrer to such answer.
We will next consider causes urged for a new trial: (1) Objections to certain evidence; (2) insufficient evidence; and (3) verdict contrary to law.
The evidence, in substance, shows that on the evening of July 26 1923, one James M. Burns, a resident of the city of Washington, Indiana, claiming to be a constable of the Horse Thief Detective Association, received information over the telephone that some parties were operating an illicit still near the town of Alfordsville. This man Burns, who is referred to by some of the witnesses as "Captain Burns," called to his aid three other persons of the city of Washington having the authority only of horse thief constables, and together, by means of automobiles, they proceeded to the town of Alfordsville where they met other persons from whom they received some information, but on what subject does not appear. From Alfordsville they continued on south and a little west, a distance of about three miles, when they parked their...
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