Kinnaird v. State

CourtSupreme Court of Indiana
Citation242 N.E.2d 500,251 Ind. 506,16 Ind.Dec. 250
Docket NumberNo. 1067S114,1067S114
PartiesCharles Anthony KINNAIRD, Appellant, v. STATE of Indiana, Appellee.
Decision Date17 December 1968

E. Prescott Long, Jeffersonville, for appellant.

John J. Dillon, Atty. Gen., of Indiana, Michael V. Gooch, Deputy Atty. Gen., Indianapolis, for appellee.


Appellant was, on March 3, 1967, charged by affidavit filed in the Clark Circuit Court with the crime of 'Knowingly Receiving Stolen Property,' such affidavit reads as follows:

'Marion Deckard being duly sworn upon oath says, that at the County of Clark, in the State of Indiana, on or about the 24th day of February, 1967, Charles 'Sonny' Kinnaird did then and there commit the crime of theft of the property of Everett Page, doing business as Federal Window and Awning Company in that he knowingly, unlwfully and feloniously obtained control over said property, to-wit: One Radial arm saw, One grinder, two paint spray guns, one set acetyline torches and gauge, one transit and tripod, and one sabre saw, all of the value of $616.00, knowing that said property had been stolen by another, to-wit: Lee Redd and Richard L. Sheckles, intending to deprive the owner permanently of the use of said property, being then and there, contrary to the form of statutes in such cases made and provided and against the peace and dignity of the State of Indiana.'

On the same day, March 3, 1967, appellant was arrested on a bench warrant issued out of the Clark Circuit Court, such warrant reads as follows:

'The State of Indiana, to the Sheriff of Clark County, Greeting:

You are hereby commanded to arrest Charles 'Sonny' Kinnaird if he may be found in your baliwick, so that you have his body before the Judge of the Clark Circuit Court, instanter, then and there to answer the State of Indiana, on a charge of Knowingly receiving stolen property and abide the order of the Court, thereon and return this writ.

WITNESS, the clerk and Seal of said court, this 3rd day of March, 1967.

/s/ Thomas McCartin, Clerk.'

The return to said bench warrant reads as follows:

'Executed this Warrant this 3rd day of March 1967 by taking into custody Charles 'Sonny' Kinnaird.

Sheriffs Fees

Service 6.00

/s/ W. W. Gilbert

Sheriff Clark Co. Ind.'

Trial was had by jury in June 1967, which resulted in a verdict of guilty, which in pertinent part reads as follows:

'We, the jury, find the defendant, Charles Anthony Kinnaird, guilty as charged in the affidavit and fix his penalty at $900.00 and imprisonment for not less than one (1) nor more than ten (10) years and find his true age to be 34 years.

/s/ Nelson O. McKinley


At the time of appellant's arrest, the arresting officers found him in his place of business on the ground floor. They conducted a search of the ground floor; the second floor containing rooms occupied by him as his residence, a large store room adjacent to his living quarters and also the third floor of the building in which appellant was arrested, and seized the goods alleged to have been stolen along with other goods not mentioned in the affidavit.

Prior to trial appellant's attorney filed three motions, the first a Motion to Dismiss, which in pertinent part reads as follows:

'Comes the defendant, by counsel, and moves the Court to dismiss the within charges against the defendant herein on grounds that the evidence against the defendant herein is inadmissible as being the 'tainted fruit' of an illegal search and seizure.'

The second motion was to suppress evidence, which in pertinent part reads as follows:

'Comes the defendant, by counsel, and moves the Court to suppress the evidence obtained on March 3, 1967 by the officers of the City of Jeffersonville, Indiana and the Prosecuting Attorney of Clark County, Indiana, from the premises occupied by the defendant at 229 Spring Street, Jeffersonville, Indiana, on grounds that said evidence was obtained as the result of an illegal search and seizure by the officers aforesaid.

The property specifically involved is as follows:

One radial arm saw

One grinder

Two paint spray guns

One set acetylene torches and gauge

One transit and tripod

One sabre saw.'

The third motion was to Quash the Affidavit, which in pertinent part reads as follows:

'Comes defendant, by counsel, and moves the Court to quash the Affidavit herein on the following grounds:

(1) The affidavit fails to specify a criminal offense with sufficient certainty to set out the degree of said offense.

(2) That said affidavit does not set out sufficient facts upon which the Court could establish probable cause for issuance of an arrest warrant.'

All three of appellant's motions were overruled and denied by the court.

At the trial appellant objected to the admission in evidence of the goods seized during the search following the arrest, the objections were overruled by the court.

Thereafter appellant filed his Motion for New Trial, such motion in pertinent part reads as follows:

'Comes defendant, by counsel, and moves the Court to set aside the verdict of the jury herein and grant him a new trial on the following grounds:

(1) The verdict is contrary to the law and the evidence.

(2) The Court erred in overruling defendant's motion to suppress evidence and which was admitted into evidence over defendant's objection.

(3) The Court erred in overruling defendant's motions to quash the affidavit and warrant of arrest.

(4) The Court erred in overruling defendant's objections to the admission of evidence of minor criminal offenses committed by the defendant which were totally unrelated to the nature of the offense for which he was standing trial.

(5) The Court erred in overruling defendant's objections to the admission into evidence items of stolen property which were not the subject of the charge on trial.

(6) The Court erred in failing to instruct the jury on the penalty where the property was under the value of $100.00.

(7) The Court erred in giving the Third literary paragraph of Instruction No. 6 to the jury over the objection of the defendant on grounds that said instruction appelas to the passions of the jury, tending to prejudice the jury against the defendant.

(8) The Court erred in allowing the State on the date of trial to amend the affidavit setting out value of the property allegedly received to the prejudice of the defendant.

(9) The Court further erred in overruling defendant's motion for a continuance on grounds that amendment of the affidavit on the morning of trial deprived him of his right to adequate time for preparation of his defense.

(10) The defendant was prejudiced in presenting his defense by reason of sudden surprise for which defendant could not be adequately prepared to defend himself when Witness Dobbs was presented as a witness for the State and purported to be one of the thieves of the property allegedly stolen, when the affidavit named two other persons as the thieves. His testimony was material and important in that said testimony went to the question of knowledge on the part of the defendant that the property he received was in fact stolen property.

(11) Burns Indiana Statute 9--908 and 9--909 is unconstitutional as repugnant to Article I, Section 11 of the Indiana State Constitution and the 14th Amendment to the United States Constitution in that it dispenses with a requirement for demonstration of probable cause supported by oath or affirmation for a magistrate to determine whether warrant should or should not issue. It further provides for a County Prosecutor to make a judicial determinatioin and relegating a judge to be merely a 'rubber stamp.' As a consequence, the defendant herein was subjected to unlawful arrest and evidence obtained by means of an illegal search and seizure in violation of his Constitutional rights. As a further consequence, the within Court had no jurisdiction over the person of the defendant.

Defendant objected and reserved exceptions to all of the foregoing acts and omissions.'

The judgment of the court overruling appellant's motion for a new trial, and from which stems this appeal, in pertinent part reads as follows:

'The Court having previously taken under advisement the defendant's motion for a new trial in this cause now finds that the defendant's motion for a new trial should be overruled.

It is therefore considered, ordered and adjudged that the defendant's motion for a new trial is hereby revoked.'

Appellant's Assignment of Errors, in pertinent part reads as follows:

'1. The court erred in overruling appellant's motion for a new trial.

2. The court erred in overruling the appellant's motion in arrest of judgment.'

Appellant, in essence, has raised two questions by this appeal, the first relates to the admission in evidence of certain items of personal property seized by the police. On that issue appellant contends the warrant for his arrest was invalid in that it was not supported by a showing of probable cause as required by Article I, Sec. 11 of the Constitution of the State of Indiana; his contention further being that since the arrest warrant was invalid the arrest and ensuing search were necessarily illegal and that the admission in evidence of the property seized at the time of or shortly after the arrest constituted reversible error.

The affidavit on which the arrest warrant was issued appears on p. 1 (supra).

Article I, Section 11 of the Constitution of the State of Indiana, which is identical to the Fourth Amendment to the Constitution of the United States, reads as follows:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.' (Emphasis supplied)

Appellant has properly raised and saved the question as to whether the affidavit in support of the...

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