Gwinn v. State

• Decision Date: 18 June 1929
• Docket Number: No. 25702.,25702.
• Citation: 166 N.E. 769,201 Ind. 420
• Parties: GWINN v. STATE.
• Court: Indiana Supreme Court

201 Ind. 420

166 N.E. 769

GWINN

v.STATE.

No. 25702.

Supreme Court of Indiana.

June 18, 1929.

Appeal from Madison Circuit Court; Carl F. Morrow, Judge.

Forrest Gwinn was convicted of possessing and using a still for manufacture of intoxicating liquor, and he appeals. Affirmed.

Walterhouse & Miller, of Muncie, for appellant.

James M. Ogden, Atty. Gen., and Merl M. Wall and Burke Walker, Deputies Atty. Gen., for the State.

MARTIN, C. J.

The appellant was convicted of possessing and using a still for the unlawful manufacture of intoxicating liquor in violation of section 6, c. 48, Acts 1925 (section 2719, Burns' 1926). Before arraignment, he filed a verified motion to quash the affidavit for search warrant, the search warrant and the return thereon and to suppress the evidence obtained thereby, to which motion an answer in general denial was filed by the state. After a hearing on the motion, the court overruled the same, and the appellant's assignments of error question the correctness of this ruling, the validity of the search that was made of appellant's premises, and the admissibility of the evidence obtained thereby.

The affidavit for the search warrant and the search warrant were in the usual form prescribed by the statute. Section 2086, Burns' 1926. The judge of the city court of Anderson, who issued the search warrant, recited in his order issuing the same that:

“Whereas, from oral evidence heard by me after said affidavit was filed, I have found that probable cause exists for believing that the things described in said affidavit are being concealed in or about the premises therein described and are being kept unlawfully and in relation to the offense named in said affidavit, You are therefore commanded,” etc.

At the hearing on appellant's motion in the circuit court, the city judge and the sheriff who executed the affidavit for the search warrant testified. From their testimony it appears that, prior to the issuance of the search warrant, the sheriff testified upon his oath before the city judge substantially as follows: That he had been out to the defendant'sfarm and in the neighborhood on different occasions, and had been watching the place for four months; that he had checked up on evidence and oral testimony that there was liquor and a still at the place; that he had made investigations at Noblesville, and found that defendant had bought a considerable amount of sugar there recently, and had also purchased a number of bottles and corks; that he had investigated where the defendant did his banking and where he delivered liquor at Anderson, Lapel, and Noblesville. The sheriff also swore before the city judge that he had smelled liquor, home brew, and mash on the defendant's premises; that there had been a fire at the defendant's, and from his investigation he believed that it was the result of the explosion of a still, that after the fire the defendant had mash in his barn, and that two weeks previously he was serving drinks at a little place where he was living before his new house was finished, and that you could buy either red liquor or white liquor from him. The sheriff also testified that he had oral evidence that defendant stated it would not take him long to pay for his new home as soon as he got his stills going.

The appellant contends that, since the affidavit for the search warrant was made on information and belief, the search warrant was therefore issued without probable cause, and that the search was void and in violation of section 11, art. 1, Const. (section 63, Burns' 1926), and the evidence obtained thereby was inadmissible, citing Wallace v. State (1927) 199 Ind. 317, 157 N. E. 657, and State v. Blystone (1928) 200 Ind. -, 162 N. E. 233. These cases do not hold that, because an affidavit is made on information and belief, any search warrant issued thereon is issued without probable cause and is void, but they hold that the search warrant is invalid when it is based “wholly *** only and solely” upon an affidavit on information and belief, and “not upon any other additional facts or information whatever.” Probable cause for issuing the search warrant may be shown to the issuing magistrate either by positive allegation of facts in the affidavit¹ or by sworn testimony. ²

The appellant further contends that the testimony of the sheriff before the city judge was insufficient to establish reasonable and probable cause for the issuance of the search warrant. Part of the sheriff's testimony was hearsay, as appellant contends, but the general rule against the admission of hearsay evidence has never been applied in inquiries into the existence of probable cause. The question to be determined in such a case is not the positive establishment of a defendant's guilt, or the fact that a person has in his possession certain liquor, stills, etc., but the inquiry is: Does reasonable and probable cause exist for believing that a person has unlawfully in his possession the property alleged. This court has...