Mata v. State

• Decision Date: 24 February 1932
• Docket Number: No. 25888.,25888.
• Citation: 179 N.E. 916,203 Ind. 291
• Parties: MATA v. STATE.
• Court: Indiana Supreme Court

203 Ind. 291

179 N.E. 916

MATA

v.STATE.

No. 25888.

Supreme Court of Indiana.

Feb. 24, 1932.

Appeal from Criminal Court, Lake County; Martin J. Smith, Judge.

Joe Mata was convicted of unlawful possession of intoxicating liquor, and he appeals. Transferred from appellate court, under Burns' Ann. St. § 1351, and § 2325, subd. 1.

Reversed and remanded, with directions.

Patterson & Thiel and John A. Sabo, all of Gary, for appellant.

Jas. M. Ogden, Atty. Gen., and Merle M. Wall, of Indianapolis, for the State.

ROLL, J.

The appellant was found guilty by the Lake criminal court of the crime of unlawful possession of intoxicating liquor. He has appealed from a judgment of fine and imprisonment at the Indiana state farm.

[1] The first assignment of error is that the court erred in overruling the motion of the appellant to suppress and reject certain evidence. Alleged error of the trial court in overruling a motion to suppress and reject evidence must be specified as a cause for a new trial under section 2325, subd. 1, Burns' 1926, and not as an independent error. Volderauer v. State (1924) 195 Ind. 415, 143 N. E. 674;Chappelle v. State (1925) 196 Ind. 640, 149 N. E. 163;Welch v. State (1926) 197 Ind. 258, 150 N. E. 761.

[2] The third, fourth, fifth, and sixth assignments of error relate to rulings on evidence at the trial, and can be presented only by the motion for a new trial and not as independent errors.

The second assignment of error is that the court erred in overruling appellant's motion for a new trial. Twenty alleged causes for same are stated in the motion.

[3] One of the causes for a new trial was that the court erred in sustaining the objection of the state to the introduction in evidence of the verified motion of the appellant to suppress and reject the evidence upon the hearing on that motion. The court is not required to take allegations of fact in a motion as true unless they have been shown to be true by the evidence. Recitals of fact in a motion require proof the same as an allegation of fact in any other pleading or paper. Alyea v. State (1925) 198 Ind. 364, 152 N. E. 801, 153 N. E. 775. Self–serving declarations contained in pleadings are, as a general rule, inadmissible. 2 Jones, Commentaries on Evidence (2d Ed.) 1601, § 876. The motion and answer thereto fixed the issues and informed the court as to the extent of the issues. The motion could be sustained only by proof of the facts therein alleged. This proof could not be made by the admission in evidence of the motion. The court did not err in said ruling.

The appellant claims that the court erred in overruling his motion to quash the search warrant and affidavit therefor; and to suppress and reject certain evidence because of the invalidity of the search warrant. The state by the prosecuting attorney filed a general denial to this motion. The objection to the search warrant was that it was issued without probable cause. It is shown by the record that, when this motion was submitted to the court for hearing, neither side introduced any evidence. It appears that the affidavit for the search warrant stated that Oscar Salzman, who was a police officer, swore that he believed and had good cause and reason to believe that John Doe, whose true name was unknown, had in his possession certain intoxicating liquors which were possessed in violation of the laws of the state of Indiana, at No. 1525 Adams street in the city of Gary. A copy of the search warrant was made an exhibit to the motion. And the search warrant, signed by the judge of the city court of the city of Gary, contained the following: “And whereas, from oral evidence heard by me after said affidavit was filed, I found that probable cause exists for believing that the things described in said affidavit are being concealed in or about the premises described and are being there kept unlawfully and in relation to the offense named in the affidavit.” In the motion, the following is alleged: “This affiant says that no oral evidence was in fact heard or attempted to be heard by the said C. N. Greenlee as Judge of the City Court of any facts showing probable cause but that the testimony if any was given by the said Oscar Salzman was given entirely on suspicion, guesswork and rumor; and that the said Oscar Salzman did not know of his own knowledge that this affiant was in possession of any of the things set out and alleged in the affidavit for search filed in this cause.” The motion to quash the search warrant herein can be distinguished from the one in Wallace v. State (1927) 199 Ind. 317, 157 N. E. 657, as the motion in the instant case shows by the search warrant that oral evidence was heard and the court found that probable cause existed for issuing the search warrant; while in the Wallace Case the affidavit on belief before the court was the sole and only proof in support of probable cause. Appellant, by his motion to quash and suppress, challenges the sufficiency of the search warrant. Not by reason of anything which appeared on the face of the warrant, but by alleging facts, which, if true, would render the search warrant invalid.

The search warrant, as shown by the copy as set out in appellant's motion, contained the following: “And whereas, from oral evidence heard by me after said affidavit was filed, I found that probable cause exists for believing that the things described in said affidavit are being concealed in or about the premises described and are being there kept unlawfully and in relation to the offense named in the affidavit.” Appellant said in his motion that: “This affiant says that no oral evidence was in fact heard or attempted to be heard by the said C. N. Greenlee as judge of the City Court of any facts showing probable cause but that the testimony if any was given by the said Oscar Salzman was given entirely on suspicion, guesswork and rumor; and that the said Oscar Salzman did not know of his own knowledge that this affiant was in possession of any of the things set out and alleged in the affidavit for search filed in this case.”

[4][5] The state filed an answer in general denial to appellant's motion. By these pleadings an issue of fact was formed, and appellant, to sustain the allegations contained in his motion, offered to introduce in evidence, Exhibit No. 1 which was his verified motion to quash. This was refused in evidence. Appellant offered no further evidence in support of his motion, and the state offered none. The court overruled appellant's motion and this ruling is assigned as error. We do not think the court erred in this, for the reason that appellant raised the issue, and was asking for affirmative relief, and the burden was upon him to introduce evidence in support thereof. One having the burden of proof, if he does not introduce any evidence in support thereof, must fail. Bell v. Corbin (1894) 136 Ind. 269, 36 N. E. 23;McGinnis v. Boyd (1895) 144 Ind. 393, 42 N. E. 678;Warner v. Warner (1903) 30 Ind....