Heyvert v. Stat
| Decision Date | 25 February 1935 |
| Docket Number | 26164 |
| Citation | 194 N.E. 324,207 Ind. 654 |
| Parties | HEYVERT v. STAT |
| Court | Indiana Supreme Court |
Appeal from Superior Court, St. Joseph County; J. Elmer Peak, judge.
Dudley M. Shively and Walter R. Arnold, both of South Bend, for appellant.
James M. Ogden, Atty. Gen., and James T. Dowling, Deputy Atty Gen., for the State.
Appellant was charged by affidavit in three counts, namely: (1) Unlawful possession; (2) unlawful sale; and (3) unlawful manufacture of intoxicating liquor, under chapter 48 of the Acts of the General Assembly of 1925. He was tried and convicted on each count.
On appeal he has assigned as errors of the trial court:
(1) The overruling of his motion to quash the search warrant and to suppress the evidence obtained thereby; and (2) the overruling of his motion for a new trial, assigning therein the alleged error of the court in overruling his motion to quash and to suppress the evidence; and (3) the alleged error of permitting the witnesses to testify at the trial as to what was found by virtue of the search warrant which was not offered and introduced in evidence.
The appellant timely moved to quash the affidavit and search warrant and to suppress the evidence obtained thereunder. Also he objected to the introduction of the oral evidence at the trial, reserving exceptions, and by various methods preserved all questions for review in this court.
The essential part of the affidavit contained in the search warrant and upon which it was issued is as follows: 'E. H. Stephenson being duly sworn upon oath says that he believes, and has good cause to believe, that John Doe, whose true name is unknown possesses certain intoxicating liquors in violation of the laws of the State of Indiana. * * *' The affidavit was subscribed and sworn to before the city judge of South Bend on the 8th day of January, 1931. In addition to copying the affidavit in the search warrant, it contained the following statement: '* * * The court having heard the evidence submitted in support of said affidavit, and being sufficiently advised now determines and finds. * * *'
No facts brought before the court by the oral evidence are contained in the search warrant.
Whatever the rule may have been formerly, it is now settled that the question of probable cause for issuing a search warrant is a judicial one; that the question of probable cause may be raised by a motion to quash the affidavit and suppress the evidence, or at the trial on objection to the admission of the search warrant in evidence, or by objection to the introduction of the evidence obtained by virtue of the warrant. It is now the rule that the facts upon which the search warrant is based must be stated therein. This question is fully discussed in Bedenarzik v. State, 204 Ind. 517, 185 N.E. 114. On the question of showing probable cause for the issuance of the search warrant, the court at page 523 of 204 Ind. 185 N.E. 114,...
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