Hanger v. State
| Decision Date | 15 March 1928 |
| Docket Number | No. 25308.,25308. |
| Citation | 199 Ind. 727,160 N.E. 449 |
| Parties | HANGER v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Parke Circuit Court; Howard Maxwell, Judge.
Elzie Hanger was convicted of transporting intoxicating liquor in an automobile, and he appeals. Affirmed.
Joseph James Ryan, of Indianapolis, for appellant.
Arthur L. Gilliom, Atty. Gen., and Bernard A. Keltner, Deputy Atty. Gen., for the State.
Appellant was charged by affidavit in one count with the unlawful transportation of intoxicating liquor in an automobile under section 7, c. 48, Acts 1925 (section 2720, Burns' 1926); was tried, found guilty, fined, and sentenced to imprisonment.
He assigns as error the overruling of his motion to quash the affidavit and his motion for a new trial. Under points and authorities in his brief he cites section 2151, Burns' 1926, to the effect that the clerk shall indorse on the affidavit the date of filing and record the same. No application of this statute is made to this appeal, but even if objection to such an omission by the clerk had been properly presented, it would not in any way injure the defendant or furnish him any valid ground of reversal, when the record, as here, recites that the affidavit was approved by the prosecuting attorney, and filed by him in the trial court. Williams v. State (1906) 168 Ind. 87, 93, 79 N. E. 1079.
In his motion for a new trial, appellant alleges that the court erred in admitting in evidence a jug of white mule whisky, and testimony that it was found in appellant's automobile. Appellant contends that this evidence was improper, for the reason that the officers making the arrest had no search warrant nor any knowledge that a felony was being committed.
The facts proved, which were undisputed, the appellant having offered no evidence, were that on June 13, 1925, a witness Waldo Nivens, who, as deputy sheriff, later assisted in making the arrest, saw appellant and others loading jugs into two automobiles at the home of an Italian farmer named Roshie in Parke county. He had also seen them there on former occasions. The sheriff, upon receiving word from Nivens that “those cars are in at Roshie's again,” stationed himself and several deputies along the public road. When appellant in his automobile approached two of the deputy sheriffs, who were sitting on the running board of their automobile, they arose. One of these deputies had a revolver in a holster strapped on his person. The other was unarmed, but had a gun in his automobile. The appellant, before reaching the deputies, jumped from his car, leaving the engine running, and ran north through a pasture field. Some of the deputies followed the appellant who proceeded through a woods, and was found in an abandoned coal mine in the vicinity. One of the deputies shut off the engine of appellant's automobile, and later drove it to the coal mine, where the sheriff placed appellant under arrest. The officers found in appellant's open Ford automobile five 5-gallon jugs of white mule whisky.
The state sought to prove what further and more exact information the sheriff had upon which he acted, but the court, under the mistaken assumption that the hearsay rule applied, refused to permit him to testify as to what he had been told other than as above set out. However, upon the facts we have stated, especially the fact that appellant abandoned the automobile and fled (see State v. Godette [1924] 188 N. C. 497, 125 S. E. 24), we believe that the officers had reasonable and probable cause to arrest appellant without a warrant, and to examine, without a search warrant, the contents of the jugs which Nivens had seen placed in appellant's automobile. Murphy v. State (1926) 197 Ind. 360, 151 N. E. 97;Thomas v. State (1925) 196 Ind. 234, 146 N. E. 850;Koscielski v. State (1927) 199 Ind. -, 158 N. E. 902;Carroll v. U. S. (1924) 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790.
Section 2748, Burns' 1926, provides that “when *** any officer of the law shall discover any person in the act of transporting, in violation of law, intoxicating liquors in *** any *** automobile, *** it shall be his duty to seize any and all intoxicating liquors found therein” being transported contrary to law. Speaking of a similar statute, the United States Supreme Court, in Carroll v. United States, supra, used the following language, which was quoted with approval in Morgan v. State (1925) 197 Ind. 374, 383, 151 N. E. 98, 101:
“On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid.”
As this court pointed out in Eiler v. State (1925) 196 Ind. 562, 149 N. E. 62, citing three federal court cases, which have since been followed in a large number of cases:
“Information from a credible source, together with facts known to or observed by the officers indicating that such information is correct, may constitute such reasonable and...
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