Hunt v. State

• Decision Date: 07 December 1939
• Docket Number: 27274.
• Citation: 23 N.E.2d 681,216 Ind. 171
• Parties: HUNT v. STATE.
• Court: Indiana Supreme Court

23 N.E.2d 681

216 Ind. 171

HUNT v. STATE.

No. 27274.

Supreme Court of Indiana

December 7, 1939

Appeal from Hamilton Circuit Court; Frank B. Russell, Judge.

Cloe Campbell, Cloe & Cloe, of Noblesville, and Rochford &amp Rochford, of Indianapolis, for appellant.

Omer S. Jackson, Atty. Gen., and Hubert E. Dirks, Deputy Atty Gen., for appellee.

SHAKE Chief Justice.

Appellant was found guilty by the court without a jury of operating a motor vehicle while under the influence of intoxicating liquor and sentenced to the Indiana State Farm for 60 days and to pay a fine of $10. He has appealed, assigning that the trial court erred in denying his motion for a new trial, in which he asserted that the finding was not sustained by sufficient evidence and that it was contrary to law.

There was evidence that appellant was a whisky salesman and that on the 21st day of December, 1938, he called on customers in the city of Elwood; that on the evening of said day he undertook to drive his automobile to his home in Indianapolis; that his route was by way of the village of Carmel, in Hamilton County; that while passing through that village his automobile collided with a concrete block, or pillar, two or three feet in height, at the center of a street intersection. Two state police officers were called to investigate the accident; they found that after striking said concrete pillar, appellant's automobile had gone approximately 40 feet further and damaged a parked car; that it then went up over a bank, some three feet high, and struck a tree, 197 feet from the concrete pillar; and that appellant's car was practically demolished by reason of its collision with said tree. Approximately an hour and a half after the occurrence of the accident, the police officers found the appellant in the office of a local physician, where he was receiving treatment for his injuries. They had not witnessed the accident or seen appellant operating his automobile, nor did they have a warrant for his arrest. One of the officers told appellant that they would have to place him under arrest, but that on account of his injuries he would not be taken into custody at the time. The officers related conversations with the appellant in the doctor's office, in which appellant stated that he drank two drinks of intoxicating liquor earlier in the evening; that he had been with his customers and that he had had too much; and that appellant asked the officers to be as easy on him as they could.

Appellant offered evidence to establish that at the time of the accident he was suffering from monoxide gas poisoning due to a leaky heater in his automobile. The fact that the heater was defective was corroborated by other witnesses and physicians testified that in their opinion appellant had been poisoned by monoxide fumes, though they stated that they also smelled intoxicating liquor on his breath. Appellant said that he was so dazed at the time he talked with the police officers that he did not remember what he said to them.

Appellant has advanced the theory that there was no evidence to sustain the finding of the court without basing one inference upon another, which, he says, can not lawfully be done. In the case of Hinshaw v. State, 1897, 147 Ind. 334, 363, 47 N.E. 157, 166, it was said: 'A fact in the nature of an inference may itself be taken as the basis of a new inference, whether intermediate or final, provided the first inference have the required basis of a proved fact.'

The matter of basing one inference upon another was fully considered by this court in the case of Orey v. Mutual Life Ins. Co. of New York, Ind.Sup., 1939, 19 N.E.2d 547, 549. This court there quoted with approval a note in 95 A.L.R. 162, 182, where it was observed: "It seems clear, after examination of all of the cases which have discussed the question, that there is no such general rule in the sense in which the language itself implies, and that if, in a sense, such a rule may be said to exist, the phraseology used to express it is inaccurate and misleading, and the meaning is quite different than appears upon its face. The courts have apparently often used this phraseology merely as a convenient way of disposing of evidence which it regarded as too remote or uncertain to prove the ultimate facts at issue. The language has become a sort of judicial slogan, used carelessly, inaccurately, and to the confusion of the profession. The statement of the rule in many of the cases, that an inference cannot be based on an inference, shows that what is meant primarily is that an inference cannot be based upon evidence which is uncertain or speculative, or which raises merely a conjecture or possibility."

These authorities are sufficient to clearly indicate that the so-called inference upon inference rule is not as broad as appellant suggests and that it can have no application whatever to the case at bar.

Appellant also contends that the police officers who testified as to his condition and admissions were incompetent witnesses and that their evidence was inadmissible because their arrest of him was unlawful, since they had no warrant and no offense was committed in their presence. Section 47-828, Burns' 1939 Pocket Supp. It may be observed in that connection that subsequent to this alleged arrest, a charge was filed against appellant, a warrant was issued and served, and that he appeared at the bar of the court in person and by counsel and entered a plea of not guilty. Under these circumstances we do not have here any question as to the jurisdiction of the trial court over the subject-matter of the action or over the person of the appellant. There was no motion to suppress the testimony of the police officers, nor was any objection made to it at the time it was offered or admitted. We assume that appellant relies upon the rule that evidence is inadmissible when it has been unlawfully obtained in violation of a defendant's constitutional rights, such as, for example, protection against an accused being required to give evidence against himself or the guaranty against unlawful search and seizure. This, however, is an exception to the general rule, which is, that evidence which is otherwise competent is not rendered inadmissible by reason of the means by which it was obtained; but, even where the circumstances bring the case within the exception, the defendant can not sit by and suffer the evidence to be offered against him without objection and afterwards be heard to say that it was obtained in violation of his constitutional rights. Thompson v. State, 1929, 89 Ind.App. 555, 167 N.E. 345; McSwain v. State, 1929, 89 Ind.App. 592, 166 N.E. 444, 167 N.E. 568. The rule which governs the present case is found in Shorter v. State, 1929, 89 Ind.App. 288, 291, 292, 166 N.E. 287, 288: 'On the trial, appellant objected to the testimony of the city marshal and the patrolman as to matters observed by them...