Hantz v. State

Decision Date08 May 1929
Docket Number13,609
PartiesHANTZ ET UX. v. STATE OF INDIANA
CourtIndiana Appellate Court

Transfer denied January 29, 1931.

From St. Joseph Superior Court; Lewis W. Hammond, Judge.

Steve Hantz and wife were convicted of unlawful possession and sale of intoxicating liquor and maintaining a liquor nuisance, and they appealed.

Affirmed.

D. D Nemeth and Walter R. Arnold, for appellants.

Arthur L. Gilliom and James M. Ogden, Attorney-Generals, and Harry L. Gause, Deputy Attorney-General, for the State.

OPINION

MCMAHAN, P. J.

Appellants were indicted and convicted of violating the Prohibition Law, §§ 4 and 24, Acts 1925 p. 144, §§ 2717, 2740 Burns 1926. The indictment is in three counts: (1) for selling; (2) for possessing intoxicating liquor; and (3) for maintaining a common nuisance. A trial by jury resulted in a conviction of each appellant on each count. The errors assigned are the overruling of a motion for a new trial, and the overruling of a motion in arrest of judgment.

Appellants contend the verdict is not sustained by sufficient evidence, and that it is contrary to law. The first count charged a sale of intoxicating liquor to Arthur Ghrist. Arthur Ghrist was a witness and testified that in June, 1925, he was at appellants' place of business with Ed. Allen, who has since died; that appellant Steve Hantz was behind the counter when Allen spoke to him, and that Steve told them to go into the back room; that they went back there and bought three drinks of whisky from Mrs. Hantz, and paid her 25 cents a drink. Steve Hantz testified that he never saw Ghrist in his place of business and that he knew nothing about his wife selling him any liquor. Mrs. Hantz denied having sold liquor to any one. Appellants also contend the evidence does not show the sale to Ghrist was made in St. Joseph County, Indiana, as charged in the indictment. The evidence conclusively shows that appellants conducted a soft-drink parlor and lunch stand at a designated place in South Bend, Indiana. Ghrist testified that he lived in South Bend, knew appellants, that he was in their place of business in June, 1925, and bought the liquor while there. The case was tried at South Bend. The evidence is sufficient to sustain a finding that the place of business where Ghrist said he bought the liquor was in South Bend, and we know judicially that South Bend is in St. Joseph County, Indiana. There is no claim that appellants conducted a business, or had a place of business, at any place other than at South Bend.

The police searched appellants' place of business in June, 1925, at a time when Mrs. Hantz and her daughter and two men were present. A glass of whisky was found on the kitchen cabinet, another glass of whisky was found on a table in the kitchen, a dollar bill was lying on the table, and a fruit jar partly filled with whisky was found in a room next to the kitchen. Another search was made in August, 1925, when a 10-gallon keg of whisky was found buried in the wall under the stairway in the basement. Appellants disclaim ownership of the keg of whisky and desire the court to draw the inference that it belonged to some one who operated the place before they took possession two years before. They deny having sold any intoxicating liquor to any one, and, in explanation of the liquor which the police testified was found in June, 1925, appellant Steve says that was "fixed," intimating the police had planted the liquor in his place of business for the purpose of manufacturing evidence to convict him.

Mrs. Hantz claims that, being a married woman, the evidence is not sufficient to overcome the presumption that whatever she did was done by virtue of the coercion of her husband. She testified she had a soft-drink parlor and lunch room; she cooked the lunches and her husband looked after the outside interests and that she was there when Ghrist claimed he bought the liquor. The husband testified that he did not know anything about his wife selling intoxicating liquor. There is no evidence that what she did was done in the presence of her husband. In any event, this defense is rather inconsistent with her claim that she never sold any liquor. The evidence is sufficient to overcome the presumption that Mrs. Hantz was acting under the coercion of her husband. See Stadia v. State (1929), 89 Ind.App. 192, 166 N.E. 25.

The evidence shows possession of intoxicating liquor, sale of same, and that the place kept by appellants had the reputation of being a place where such liquor was sold as a beverage, and is sufficient to sustain the verdict.

The next contention is that the court erred in admitting State's exhibits 1, 2 and 3 in evidence. In this connection, appellants undertake to challenge the validity of the two search warrants. The only State's exhibits introduced in evidence are Exhibits A, B and C. In order that we may not be accused of being hypercritically technical, we will assume that appellants refer to Exhibits A, B and C, instead of Exhibits 1, 2 and 3. Exhibit A is the keg of whisky found August 8, while Exhibits B and C are the glasses and the whisky found June 10. The last two exhibits and the testimony relating to the search made June 10 were admitted without objection. The first witness for the State told of the search made in August, described the finding of the keg of whisky hidden in the wall in the basement and said that Exhibit A was the keg of whisky so found, and that both appellants were present when the whisky was found. After the cross-examination of this witness, appellants introduced the affidavit for the search warrant, the search warrant under which the August search was made, and the return thereon in evidence, and then objected "to the introduction of the evidence found on this search," without stating any reason for such objection, and without making any motion to strike out any part of the testimony of the witness. The trial court, in overruling the objection, called attention to the fact that the evidence had been introduced without any objection. This is the only place in the record, so far as we are advised, where any objection was made to the admission of any evidence. Yet we are now asked to reverse this cause because of an alleged invalidity of the search warrant under which the August search was made.

Appellants were present at the time of the search in August and saw the keg of whisky and knew it had been seized by the officers under the search warrant, and made no move to suppress the evidence until after one witness, without objection, had testified to the circumstances attending the search and to the finding of the whisky, and Exhibit A was introduced in evidence without objection.

It is well settled that objections to the admissibility of evidence, unless timely made, are waived. The admissibility of evidence ascertained by virtue of an illegal search warrant is no exception to the rule. Indeed, the great weight of authority, federal and state, is to the effect that when property has been unlawfully seized, or when evidence has been unlawfully procured, a motion for the return of such property or to suppress such evidence must be timely made, or the right is lost.

The general rule of practice is that where property has been seized under authority of a search warrant, a petition for the return of such property, when proper, or to suppress the evidence learned by the search, must be timely made, and that where such petition is not timely made, the court will not pause or delay the trial to determine how the possession of the evidence was obtained. While no hard and fast rule has been adopted, the almost universal rule is that the court, will not, after the actual commencement of the trial by the introduction of evidence, entertain such a motion, except where knowledge of the possession of the evidence by the prosecution, was first learned by the defendant during the introduction of the evidence, as happened in Gouled v. United States (1921), 255 U.S. 298, 65 L.Ed. 647, 41 S.Ct. 261; Youman v. Commonwealth (1920), 189 Ky. 152, 224 S.W. 860, 13 A. L. R. 1303.

The rule at common law was as above stated. It was adopted in Massachusetts in 1841, Commonwealth v. Dana (1841), 2 Metc. (Mass.) 329, and has since been consistently adhered to by that court. This rule was followed by the Supreme Court of the United States, Adams v. New York (1904), 192 U.S. 585, 48 L.Ed. 575, 24 S.Ct. 372, and has never been departed from by that court except under peculiar circumstances, and where the defendant did not, prior to the trial, have an opportunity to present a petition for the return of the property or to suppress the evidence. Weeks v. United States (1913), 232 U.S. 383, 58 L.Ed. 652, 34 S.Ct. 341; Silverthorne Lumber Co. v. United States (1919), 251 U.S. 385, 64 L.Ed. 319, 40 S.Ct. 182; Gouled v. United States, supra; Amos v. United States (1920), 255 U.S. 313, 65 L.Ed. 654, 41 S.Ct. 266; Agnello v. United States (1925), 269 U.S. 20, 70 L.Ed. 145, 46 S.Ct. 4; Segurola v. United States (1927), 275 U.S. 106, 72 L.Ed. 186, 48 S.Ct. 77; Marron v. United States (1927), 275 U.S. 192, 72 L.Ed. 231, 48 S.Ct. 74; Olmstead v. United States (1928), 277 U.S. 438, 72 L.Ed. 944, 48 S.Ct. 564; Cogen v. United States (1929), 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275.

In Silverthorne Lumber Co. v. United States supra, an order had been made for the production of certain books and papers before the grand jury. The books were not produced, and the parties were indicted and placed under arrest. Without a shadow of authority, government agents, while the defendants were detained by the arresting officers, went to the defendants' office and took all books and papers found. An application was made as soon as might be...

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