Koscielski v. State
| Decision Date | 06 December 1927 |
| Docket Number | 25,216 |
| Citation | 158 N.E. 902,199 Ind. 546 |
| Parties | Koscielski v. State of Indiana |
| Court | Indiana Supreme Court |
1. CRIMINAL LAW.---Defendant's plea forms the issue to be tried, and without such plea, there is nothing to be tried.---In a criminal prosecution, defendant's plea forms the issue to be tried, and without such plea, there is nothing before the court or jury to be tried. p. 547.
2. CRIMINAL LAW.---It is reversible error to proceed with the trial of a criminal case without any plea by the defendant p. 547.
3. CRIMINAL LAW.---Proper manner of presenting question that trial was had without plea.---A motion for a new trial on the ground that the finding or verdict is contrary to law is the proper manner of presenting the question that the trial was had without a plea. p. 547.
4. CRIMINAL LAW.---Trial without a plea by defendant is reversible error, and entitles accused to new trial.---Where the defendant got permission to withdraw his plea of not guilty and thereafter moved to quash the indictment, a trial without a plea was reversible error, for which the defendant was entitled to a new trial. p. 547.
5 ARREST.---When peace officer may make an arrest without a warrant.---A peace officer may arrest without a warrant when he has reasonable and probable cause for believing that a felony is being, or has been, committed by the person arrested. p. 549.
6. ARREST.---Arrest by peace officer held lawful without a warrant.---An arrest by a deputy sheriff was lawful when the officer followed the person arrested as he drove an automobile from the country to the city after dark, and having stopped the driver to call his attention to the fact that his tail-light was not burning, saw a keg in the automobile, which the driver said contained whisky. p. 549.
7. SEARCHES AND SEIZURES.---Looking into automobile on the highway does not constitute a "search."---The act of an officer in looking into an automobile on the highway does not constitute a "search" in either a legal or colloquial sense. p. 549.
8. SEARCHES AND SEIZURES.---Search of automobile lawful after arrest of accused for violating automobile law.---Where the defendant was lawfully arrested for a violation of the automobile law, the officer making the arrest had the right to search the automobile in which the accused was riding at the time of the arrest, without a search warrant. p. 549.
9. CRIMINAL LAW.---Keg and contents, found in automobile after lawful arrest of driver, held competent evidence.---In a prosecution for unlawfully transporting intoxicating liquor in an automobile (2720 Burns 1926), a keg and its contents found in the automobile after the arrest of the driver for a misdemeanor committed in the officer's presence constituted competent evidence. p. 550.
10. CRIMINAL LAW.---Sufficiency of evidence will not be reviewed on appeal where cause must be remanded for a new trial. p. 550.
From St. Joseph Superior Court; Lewis W. Hammond, Judge.
Adam Koscielski was convicted of unlawfully transporting intoxicating liquor in an automobile, and he appeals.
Reversed.
George Sands, for appellant.
Arthur L. Gilliom, Attorney-General and Harry L. Gause, Deputy Attorney-General, for the State.
An indictment found by the grand jury of St. Joseph county charged the appellant with unlawfully and feloniously transporting intoxicating liquor in an automobile, in violation of § 7, ch. 48, Acts 1925 p. 146, § 2720 Burns 1926. After waiving his right to trial by a jury, he was tried by the court. The court found that he was guilty as charged. The overruling of his motion for a new trial is the only error assigned, which is presented.
He waived arraignment and pleaded not guilty. He later asked leave to withdraw his plea, which was granted. He then filed a motion to quash the indictment, which was overruled. The record does not show that a plea was thereafter entered. The record contains the following statement: "Comes now the State of Indiana by Harry S. Taylor Prosecuting Attorney, and comes also the defendant herein, and this cause being at issue, is submitted to the court for trial." It is the contention of appellant that as it is not shown by the record that appellant entered a plea, after the ruling on the motion to quash, the cause was not at issue when tried. The plea forms the issue to be tried, without which there is nothing before the court or jury for trial. Andrews v. State (1925), 196 Ind. 12, 146 N.E. 817. Under the provisions of the Criminal Code, it is error to proceed with a trial without a plea. McJunkins v. State (1858), 10 Ind. 140; Rockey v. State (1862), 19 Ind. 225; Graeter v. State (1876), 54 Ind. 159; Tindall v. State (1880), 71 Ind. 314; Bowen v. State (1886), 108 Ind. 411, 9 N.E. 378; Hicks v. State (1887), 111 Ind. 402, 12 N.E. 522; Pritchard v. State (1920), 190 Ind. 49, 127 N.E. 545; Sabo v. State (1926), 197 Ind. 210, 150 N.E. 103; Hatfield v. State (1894), 9 Ind.App. 296, 36 N.E. 664; Miller v. State (1901), 26 Ind.App. 152, 59 N.E. 287. In Tindall v. State, supra, the entry of the clerk upon the order-book stated that the issues being joined, the cause was submitted to a jury; and the court held that whether or not the issues were joined could only be determined from the pleadings themselves. The court further said that if it were to be assumed that some plea was interposed on which issue might have been joined, it would be impossible to ascertain from the record the nature or character of the plea, unless it should be inferred from the evidence given on the trial, and it would seem, on general principles, that the evidence could not be resorted to in order to determine the condition of the record as to the pleadings. In Hatfield v. State, supra, the facts were similar to those in the instant case. The defendant withdrew his plea of not guilty and moved to quash the indictment. His motion was overruled and he proceeded to trial without pleading again. It was decided that as there was no issue, the verdict convicting the defendant was contrary to law. An assignment as a cause for a new trial that the finding of the court is contrary to law, is...
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