Long v. State

• Decision Date: 27 June 1929
• Docket Number: No. 13805.,13805.
• Parties: LONG v. STATE.
• Court: Indiana Appellate Court

89 Ind.App. 496

167 N.E. 140

LONG

v.STATE.

No. 13805.

Appellate Court of Indiana, in Banc.

June 27, 1929.

Appeal from Rush Circuit Court.

Rex Long was convicted of felonious transportation of liquor in an automobile, and he appeals. Affirmed.

Owen S. Boling, of Indianapolis, for appellant.

Arthur L. Gilliom, Atty. Gen., and Harry L. Gause, Asst. Atty. Gen., for the State.

NICHOLS, J.

Appellant was charged with the felonious transportation of intoxicating liquor in an automobile, under section 2720, Burns' 1926. Before the trial, appellant filed a motion to quash the affidavit on which the search warrant was issued, and the return thereon, and to restrain the officers from testifying as to evidence secured as a result of the same. In this motion it is alleged that the affidavit was insufficient, and consequently the search was illegal and invalid. The state filed a demurrer to this motion, and after a hearing the court sustained the demurrer.

Trial by jury on a plea of not guilty, which resulted in a verdict of guilty as charged, on which, after appellant's motion for a new trial was overruled, judgment was rendered that appellant serve a term of not less than one year and not more than two years at the Indiana state farm, that he pay a fine of $100, and that the auto used in transporting liquor be sold by the sheriff. From this judgment, this appeal; the errors assigned being the rulings of the court aforesaid.

[1] It is to be observed that, while appellant was charged, under section 2720, Burns' 1926, with the commission of a felony, under which section it is provided that upon conviction there shall be imprisonment in the state prison not less than one year nor more than two years, to which may be added a fine not exceeding $1,000, there is no provision in the section or act for imprisonment for such an offense at the state farm. However, appellant may not and does not complain of a punishment that is less than the statute provides. We assume that the transfer of this case from the Supreme Court to this court, under the provisions of chapter 123, p. 429, of the Acts of the Legislature of 1929, is justified upon the ground that the punishment assessed was not imprisonment in the Indiana state prison, or the reformatory, but that it was imprisonment at the state farm.

[2][3] Appellant relies upon error of the court in sustaining appellee's demurrer in his motion to quash the affidavit on which the search warrant was issued, contending that such affidavit was insufficient to justify a search warrant, that such search warrant was therefore invalid, and that by reason thereof the search of his car was unlawful. But, as we see this case, even if it was error to sustain appellee's demurrer to the motion to quash, the facts in the case, as developed at the trial, show that such error was harmless.

The undisputed facts are that the sheriff had received reports from different named persons to the effect that appellant was hauling booze, and that he used three different cars in this business, described as a Chevrolet with a New Jersey license, a Locomobile, and a Buick. These complaints came in at different times during the months of July and August, 1926. In July, 1926, some one called the sheriff by...