Haverstick v. State

• Decision Date: 28 April 1925
• Docket Number: No. 24727.,24727.
• Citation: 196 Ind. 145,147 N.E. 625
• Parties: HAVERSTICK v. STATE.
• Court: Indiana Supreme Court

196 Ind. 145

147 N.E. 625

HAVERSTICK

v.STATE.

No. 24727.

Supreme Court of Indiana.

April 28, 1925.

Appeal from Criminal Court, Marion County; Jas. M. Collins, Judge.

Lloyd Haverstick was convicted of unlawfully transporting intoxicating liquor in an automobile, and he appeals. Affirmed.H. B. Pike and T. Ernest Maholm, both of Indianapolis, for appellant.

U. S. Lesh, Atty. Gen., for the State.

EWBANK, J.

Appellants were charged by affidavit with the offense of unlawfully, knowingly, and feloniously transporting intoxicating liquor in an automobile and, being tried by a jury, were found guilty, and each was sentenced to pay a fine and suffer imprisonment. Overruling their respective motions for a new trial is the only error assigned.

It was made to appear, without dispute, that two deputy sheriffs of Marion county, Ind., were driving an automobile toward Indianapolis, along the National road, in said county, near Morris street, when the defendants drove past in a Ford coupé “at a terrific rate” of more than 45 miles an hour, and turned east in Morris street; that the deputy sheriffs followed and overtook them, when both of the defendants were arrested on the charge of driving at an unlawful rate of speed, to which charge appellant Fagin afterward pleaded guilty, and for which he paid a fine and costs; that after the arrest was made the deputy sheriffs examined the car which defendants had been driving and in a “side pocket” on the side where appellant Haverstick had been sitting, found a loaded revolver, and behind the cushions a box of cartridges, the ownership of which Haverstick admitted, afterward pleading guilty to the charge of carrying concealed weapons, and paying a fine and costs; that in the back part of the coupé the officers found six cartons, not sealed, each of which contained a five–gallon can of “white mule whisky”; that Haverstick owned the car, and they had brought the whisky over from Terre Haute, each driving a few miles, in turn; that a man they met in Terre Haute had promised to pay them $50 for the trip if they would bring the cartons over and deliver them to a person they were to meet in Indianapolis, and that they were hauling the liquor for him.

[1] But the officers had no search warrant at the time they searched the car. And before the jury was sworn, appellants filed a verified motion setting up that fact and asking that all evidence of what was learned by making the search should be suppressed, because it was alleged that the search had been made in violation of the constitutional right of the accused to be secure against unreasonable search and seizure of their effects. Section 11, art. 1; section 56, Burns' 1914. This motion was overruled and appellants excepted. And they objected and excepted to each of many items of evidence relating to the liquor found in the car, and to the introduction in evidence of one of the cartons of whisky. They specified as reasons for asking a new trial each of said rulings, and also that the verdict is not sustained by sufficient evidence, insisting that there was no evidence tending to prove them guilty except what was unlawfully obtained by an unreasonable search and seizure. The right of officers to search a person upon lawfully putting him under arrest, as was done in this case under the facts stated, is affirmed by all the authorities. State v. Clausmeier, 154 Ind. 599, 57 N. E. 541, 50 L. R. A. 73, 77 Am. St. Rep. 511;Weeks v. United States, 232 U. S. 383, 392, 34 S. Ct. 341, 344, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177;French v. State, 94 Ala. 93, 10 So. 553;People v. Beach, 49 Colo. 516, 520, 113 P. 513, 37 L. R. A. (N. S.) 873;State v. Magnano, 97 Conn. 543, 117 A. 550;State v. Gulczynski (Del. Gen. Sess.) 120 A. 88;Haile v. Gardner, 82 Fla. 355, 360, 91 So. 376;Dozier v. State, 107 Ga. 708, 33 S. E. 418;North v. People, 139 Ill. 81, 107, 28 N. E. 966;State v. Hassan, 149 Iowa, 518, 524, 128 N. W. 960;Turner v. Commonwealth, 191 Ky. 825, 830, 231 S. W. 519;Getchell v. Page, 103 Me. 387, 69 A. 624, 18 L. R. A. (N. S.) 253, 125 Am. St. Rep. 307;People v. Cona, 180 Mich. 641, 147 N. W. 525;Toliver v. State, 133 Miss. 789, 98 So. 342;Holker v. Hennessey, 141 Mo. 527, 540, 42 S. W. 1090, 39 L. R. A. 165, 64 Am. St. Rep. 524;Azparren v. Ferrel, 44 Nev. 157, 191 P. 571, 11 A. L. R. 678;O'Connor v. Bucklin, 59 N. H. 589;State v. Mausert, 88 N. J. Law, 286, 95 A. 991, L. R. A. 1916C, 1014;People v. Chiagles, 237 N. Y. 193, 197, 142 N. E. 583, 32 A. L. R. 676;State v. McDaniel, 39 Or. 161, 65 P. 520;Hughes v. State, 145 Tenn. 544, 569, 238 S. W. 588, 20 A. L. R. 639;Quivers v. Commonwealth, 135 Va. 671, 674, 115 S. E. 564;State v. Nordstrom, 7 Wash. 506, 35 P. 382;State v. Brown, 83 Wash. 100, 145 P. 69;State v. Edwards, 51 W. Va. 220, 41 S. E. 429, 59 L. R. A. 465;Thornton v. State, 117 Wis. 338, 345, 93 N. W. 1107, 98 Am. St. Rep. 924;Wiggin v. State, 28 Wyo. 480, 206 P. 373; 1 Wharton's Criminal Proc. (10th Ed.) § 97; 2 Ruling Case Law, 467; Note 32 A. L. R. 681.

The search may extend to the contents of a package, bundle, or bag carried by the person arrested. State v. Gulczynski (Del. Gen. Sess.) 120 A. 88;State v. Hassan, 149 Iowa, 518, 524, 128 N. W. 960;Turner v. Commonwealth, 191 Ky. 825, 231 S. W. 519.

And the right to search an automobile in which the accused was riding at the time of such lawful arrest has been repeatedly upheld. Patrick v. Commonwealth, 199 Ky. 83, 250 S. W. 507;Toliver v. State, 133 Miss. 789, 98 So. 342;Azparren v. Ferrel, 44 Nev. 157, 191 P. 571, 11 A. L. R. 678;Hughes v. State, 145 Tenn. 544, 569, 238 S. W. 588, 20 A. L. R. 639;United States v. Neadeau (D. C. 1924) 2 F.(2d) 148.

[2] Where the search was not an invasion of any rights of the accused but was lawfully made pursuant to a legal arrest, the facts thereby discovered may be used in evidence against him. And the legality of the arrest being clear, the fact that articles found on his person or in his immediate possession were being used in the commission of an offense other than the one for which the arrest was made is not sufficient cause for excluding evidence of what the search disclosed, when he is placed on trial for such other offense. French v. State, 94 Ala. 93, 10 So. 553;State v. Magnano, 97 Conn. 543, 117 A. 550;Dozier v. State, 107 Ga. 708, 33 S. E. 418;Getchell v. Page, 103 Me. 387, 392, 69 A. 624, 18 L. R. A. (N. S.) 253, 125 Am. St. Rep. 307;Toliver v. State, 133 Miss. 789, 98 So. 342;Wiggin v. State, 28 Wyo. 480, 206 P. 373, 377;Milam v. United States (C. C. A.) 296 F. 629.

[3] If an officer, upon searching a person lawfully arrested for the commission of a public offense, should find in his possession a set of burglar tools and articles stolen from a house recently broken into, or implements for making counterfeit money and a quantity of coin or bills unlawfully made, or the body of a murdered man and the bloody weapon used in killing him, the person searched would not be granted immunity from prosecution for burglary or counterfeiting or murder, as the case might be, because the evidence of his guilt was discovered only through the search, even though the original arrest was for an entirely different crime. And appellants having been placed under arrest before the search was made, on a charge of the commission of a misdemeanor in the view of the officers, to which plea of guilty was afterward entered, no error was committed in refusing to suppress the evidence discovered by means of the search, or in admitting evidence at the trial of what the officers found when making the search, and there was competent evidence sufficient to sustain the verdict of guilty.

[4] Appellant complains that the trial court limited its instructions to the law which makes it a felony to transport intoxicating liquor in any wagon, buggy, automobile, water or air craft, or other vehicle (section 1, c. 34, p. 108, Acts 1923) and said nothing about the statute which makes it a misdemeanor to transport such liquor by other means (section 1, ch. 23, p. 70, Acts 1923). But we have not been referred to any evidence...