Hess v. State
| Decision Date | 22 April 1926 |
| Docket Number | 24,572 |
| Citation | 151 N.E. 405,198 Ind. 1 |
| Parties | Hess v. State of Indiana |
| Court | Indiana Supreme Court |
1. CRIMINAL LAW.---Credibility of testimony of officer making search question for trial court.---Although testimony of officer who searched defendant's premises showed reprehensible conduct, whether his testimony as to what he found during the search was worthy of belief was a question for the trial court and not for the Supreme Court. p. 4.
2. SEARCHES AND SEIZURES.---A single warrant will not authorize search of two distinct premises.---Certainty of the place to be searched in the affidavit for a search warrant and in the warrant itself is a constitutional mandate (Art. 1, 11, 63 Burns 1926), and a single warrant will not authorize a search of distinct premises, each occupied by a different person. p 5.
3. SEARCHES AND SEIZURES.---Search warrant describing premises to be searched was not invalid merely because it designated two street numbers.---A search warrant directing the officers serving it to search the premises of Frank and Clara Hess "at 214 and 214 1/2 Wabash avenue" was not invalid merely because it included two numbers, where the ground floor of the building occupied by them was designated as "No. 214" and the first and second stories were occupied by them and were connected by an inside stairway. p 5.
4. SEARCHES AND SEIZURES.---Sufficient description of place to be searched.---A description of the premises to be searched which points out or identifies such place with such reasonable certainty as will obviate any mistake in locating it is all the Constitution or statute requires. p. 5.
5. SEARCHES AND SEIZURES.---Affidavit for search warrant held sufficient.---An affidavit for a search warrant charging that intoxicating liquor was being kept on certain described premises for unlawful sale so as to constitute a liquor nuisance was sufficient in May, 1923, to authorize the issuance of a search warrant. p. 6.
6. INTOXICATING LIQUORS.---Liquor found on defendant's premises held admissible on a charge of maintaining liquor nuisance.---In a prosecution for maintaining a liquor nuisance as defined in 20 of the Prohibition Law of 1917 (8356t Burns' Supp. 1921), intoxicating liquor found in a stove pipe under the back porch of defendant, and within the description in a search warrant of the place to be searched was admissible as a circumstance to be considered with direct testimony that defendant kept liquor in the kitchen of his restaurant which was there sold to his customers. p. 7.
7. INTOXICATING LIQUORS.---Motion to strike out evidence as to finding of intoxicating liquor on defendant's premises properly overruled.---A motion to strike out all evidence as to the finding of intoxicating liquor in a stovepipe under the back porch of premises occupied by the defendant, on the ground that there was no evidence that it belonged to him or that he knew of its presence, was properly overruled, as the objection challenged the weight of the evidence and not its admissibility. p. 7.
8. INTOXICATING LIQUORS.---Evidence held sufficient to sustain conviction for maintaining liquor nuisance.---Evidence that white mule whisky was kept in room occupied by the defendant at his restaurant, that he sold it or permitted it to be sold and drunk as a beverage by his customers, held sufficient to sustain a conviction for maintaining a liquor nuisance as defined by 20 of the Prohibition Law of 1917 (Acts 1917 p 15, 8356t Burns' Supp. 1921). p. 8.
From Vigo Circuit Court; John P. Jeffries, Judge.
Frank Hess was convicted of maintaining a liquor nuisance, and he appeals.
Affirmed.
Josiah T. Walker, for appellant.
U. S. Lesh, Attorney-General, Arnet B. Cronk and Carl Wilde, for the State.
Appellant was convicted in the Vigo Circuit Court of maintaining a nuisance, as defined by § 20, Acts 1917 p. 15. In this court, he assigns as error the overruling of his motion for a new trial, and, for causes therein, he asserts that the court erred in overruling his motion to suppress evidence; in admitting the alleged evidence sought to be suppressed; insufficient evidence to support the finding of the court and that the finding of the court was contrary to law.
The affidavit charging the offense was filed in the Vigo Circuit Court June 27, 1923. It appears from the evidence that on May 14, 1923, appellant, with his family, resided in the second story of a building, the first story of which was numbered 214 Wabash avenue, Terre Haute, Indiana, and occupied by him as a restaurant and soft drink parlor. On the latter date, the judge of the city court of Terre Haute, pursuant to an affidavit that day filed in that court, issued to the superintendent of police or any peace officer a search warrant authorizing the search of the house, room and premises of Frank Hess and Clara Hess at 214 and 214 1/2 Wabash avenue, Terre Haute, Indiana, for intoxicating liquor and gambling devices. The search warrant, as shown by the return of George Marshall, a police officer, was executed four days later by reading same to a named person in the Hess restaurant kitchen, "after Frank Hess had run upstairs * * *; and found a pint bottle with a small amount of white mule whisky in it; took to the office; arrested Hess and took him into the office." Unquestionably, the bottle mentioned in the return was a milk bottle which contained a small quantity of liquor having the odor of white mule whisky.
The motion to suppress was directed to the milk bottle, its contents, and testimony concerning what the officers saw and discovered on May 18. It is shown by the motion to suppress and by the evidence, in addition to the above, that on the day of the search, Michael Casey and Ray Hiatt, policemen, with officer Marshall who had the search warrant, between 7 and 9 o'clock in the evening, entered appellant's place of business. Marshall stopped in the restaurant kitchen and Casey and Hiatt continued on upstairs by way of a stairway leading from the kitchen. The door at the head of the stairway was closed. When Casey reached the head of the stairs, without any showing of any attempt to open the door in the usual and ordinary way, he kicked the door in, or rather kicked the panels out of the door. Appellant, who was then upstairs in his residence, protested against the action of the officer and demanded of Casey to know whether he had a search warrant. There is evidence to the effect that Casey responded by knocking appellant down, breaking his arm, without any apparent reason for such treatment. Officer Casey testified that appellant said: There is also evidence that, when these officers entered appellant's place of business, he was near the soft drink counter, but left and went upstairs to his residence, followed by the two officers.
The testimony of officer Casey is here especially mentioned for the reason that it indicates, as appellant claims, his general violent disposition. Appellant seems to be of the opinion that the testimony of Casey should have but little influence even on appeal. We agree with him...
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