De Long v. State
| Decision Date | 04 October 1929 |
| Docket Number | No. 25297.,25297. |
| Parties | DE LONG v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Criminal Court, Marion County; James A. Collins, Judge.
Charles De Long was convicted of the unlawful transportation of intoxicating liquor, and he appeals. Affirmed.Robbins, Strayer & Robbins, of Indianapolis, for appellant.
Arthur L. Gilliom, Atty. Gen., and Edward J. Lennon, Jr., Deputy Atty. Gen., for the State.
Appellant was tried by the court under an indictment which charged the unlawful transportation of intoxicating liquor (under section 7, c. 48, p. 146, Acts 1925; section 2720, Burns' 1926), and was found guilty, fined and sentenced to imprisonment. He assigns as error the sustaining of a demurrer to his plea in abatement, and the overruling of his motions to quash the indictment and for a new trial; in the latter it being alleged that the finding of the court is not sustained by sufficient evidence, and is contrary to law, and that the court erred in admitting certain evidence.
[1] The state's evidence, which was undisputed, shows that the appellant, Charles De Long, and Claude Brown were arrested at 4 a. m. May 31, 1926, while they were driving into the city of Indianapolis on Keystone avenue in an automobile. The automobile was owned by De Long, and Brown was at the steering wheel. Three deputy sheriffs, who made the arrest, saw them cross the Allisonville road at a high rate of speed, pursued them, checking their speed at at least 37 miles per hour, stopped them, and placed them under arrest for speeding. After the arrest the officers discovered the odor of alcohol about the car, and asked De Long how much liquor he had, and he said 23 cans. The officers could see one 5–gallon square can between De Long's feet in the front of the car, and thereafter they searched the car and found 23 cans (115 gallons) of alcohol, 1 1/2 gallons of roofing nails, a rifle in between De Long and Brown, which was loaded with a quantity of 32–20 flat nosed cartridges—known as dumdum cartridges. De Long then told the officers that the liquor belonged to him; that he got it at Chicago Heights. He was acquainted with the officers, having been arrested by them on former occasions, and asked if there was not some way to square this up, and to let him and Brown get out and run. He also endeavored by threats to have the officers release him. The evidence is sufficient to sustain the finding of the court.
[2][3][4] The only evidence offered by the defendant was a certified copy of an affidavit filed in the municipal court of Marion county, charging Claude Brown with violating the automobile speed law on May 31, 1926, by driving at a rate of speed that exceeded 35 miles per hour, which affidavit was indorsed on the back: The court properly excluded this offered evidence, for the following reasons: First, a judgment, as shown by the court's docket, is always evidence of the fact that such judgment has been given, Maple v. Beach (1873) 43 Ind. 51;Richardson v. Vice (1835) 4 Blackf. 13; and a pleading filed in a case (although generally admissible in evidence, Manor v. Board [1893] 137 Ind. 367, 34 N. E. 959, 36 N. E. 1101), showing a notation thereon by the judge of his judgment, is not the best evidence of such judgment, and should not be received to prove the action of the court, in the absence of a showing that the record of the court is unavailable. Second, a record showing the discharge of Claude Brown is no evidence that Charles De Long was acquitted of a charge of exceeding the speed law. Third, the question of whether a defendant was or was not prosecuted (or convicted) on a charge is not conclusive of the question of whether the arrest on that charge was made upon probable cause. (See discussion infra.)
[5][6][7] The appellant contends that his arrest on the speeding charge was unlawful, and that the evidence obtained by the search, which was made without search warrant, was improperly admitted. The officers had reasonable and probable cause for making the arrest, for a violation of the automobile law, when it appeared to them that the occupants of the automobile were driving at a greater speed than was reasonable and prudent, etc., as provided by the law then in force. Section 39, c. 213, Acts 1925. The fact that appellant's codefendant was “discharged” cannot affect the status of the appellant's arrest, and, even if appellant had been found not guilty of the speeding charge, that fact of itself would not invalidate the arrest. An acquittal is not prima facie evidence of a want of probable cause. Note, 64 L. R. A. 474;Bekkeland v. Lyons, 96 Tex. 255, 72 S. W. 56, 64 L. R. A. 474;Davis v. McMillan (1905) 142 Mich. 391, 105 N. W. 862, 3 L. R. A. (N. S.) 928, 113 Am. St. Rep. 585, 7 Ann. Cas. 854. Reasonable and probable cause for making an arrest cannot be made to depend upon the establishing of the crime for which the accused is arrested. Doering v. State (1874) 49 Ind. 56, 19 Am. Rep. 669. The arrest upon the speeding charge was a lawful arrest.
[8][9] A person lawfully arrested for committing a misdemeanor may be searched without a warrant, and the search may extend to an automobile which he was operating at the time. Allgaier v. State (1929) 200 Ind. 583, 164 N. E. 315;Haverstick v. State (1925) 196 Ind. 145, 147 N. E. 625;Jameson v. State (1925) 196 Ind. 483, 149 N. E. 51;Koscielski v. State (1927) 199 Ind. 546, 158 N. E. 902;Budreau v. State (1925) 197 Ind. 8, 149 N. E. 442. The arrest of appellant and the search of the automobile which he was operating being lawful, the evidence to which objectioin was made was competent.
[10] It further appears, from the evidence set out above, that the search of appellant's automobile (in addition to being justified as an incident to the arrest on the speeding charge) was justified because of the reasonable and probable cause which the officers had for believing that the felony of unlawful transportation of intoxicating liquor was being committed in their presence. By the sense of smell they detected the odor of alcohol coming from the car (the season of the year precluded the possibility of the odor being from a nonfreezing radiator solution); by the sense of sight they saw a can of alcohol—the appearance of which was well known to them as officers—in plain view in the bottom of the car; and by the sense of hearing they heard from appellant's...
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