McDaniel v. State

• Decision Date: 06 January 1926
• Docket Number: No. 24397.,24397.
• Citation: 197 Ind. 179,150 N.E. 50
• Parties: McDANIEL v. STATE.
• Court: Indiana Supreme Court

197 Ind. 179

150 N.E. 50

McDANIEL

v.STATE.

No. 24397.

Supreme Court of Indiana.

Jan. 6, 1926.

Appeal from Circuit Court, Posey County; Herdis F. Clements, Judge.

Chester McDaniel was convicted of possessing and using a still for manufacturing intoxicating liquor, and he appeals. Reversed, with direction.

W. D. Hardy, of Evansville, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward Franklin White, Deputy Atty. Gen., for the State.

PER CURIAM.

[1] Appellant was prosecuted on the charge of having in his possession and using a still and distilling apparatus for the manufacture of intoxicating liquor in violation of law, on March 3, 1923, after Acts 1923, c. 33, p. 107, had taken effect. He was found guilty, and was sentenced to imprisonment for not less than one nor more than five years. Overruling his motion for a new trial is properly assigned as error. Appellant has also assigned as error that the affidavit does not state facts sufficient to constitute a public offense. But the sufficiency of an affidavit or indictment cannot successfully be challenged for the first time on appeal. King v. State, 191 Ind. 306, 308, 132 N. E. 628; Ewbank's Manual (2d Ed.) § 136.

[2] In any case the omission of the word “feloniously,” in charging that the defendant “unlawfully” had in his possession and used a still for the manufacture of intoxicating liquor in violation of the laws of this state, would not make the affidavit insufficient. Smith v. State, 194 Ind. 624, 144 N. E. 141;Simpson v. State (Ind. Sup.) 149 N. E. 53.

[3] Part of the evidence consisted of testimony of some deputy sheriffs, telling what they found in a certain house when they entered it under authority of a search warrant, and of the exhibition to the jury of a still and some whisky which they seized by virtue of the warrant. The search warrant had been issued on February 28, 1923, pursuant to an affidavit filed that day. Appellant's contention that section 4 of the “act prohibiting the manufacture, sale, gift, advertisement or transportation of intoxicating liquor,” etc. (Acts 1917, p. 15, c. 4), as amended in 1921 (section 1, c. 250, p. 736, Acts 1921), is not within the title of the act so far as it assumes to forbid any person “to have or possess any still, device, or property for the manufacture of liquor intended for use in violation of the laws of this state,” cannot be upheld. Forbidding the possession of a still for use in the manufacture of intoxicating liquor intended to be used in violation of law is “properly connected with” the subject of prohibiting the manufacture and sale of such liquor, expressed in the title. And that satisfies the constitutional requirement. Section 19, art. 4, Const. Ind.; section 115, Burns' 1914; Alyea v. State (Ind. Sup.) 147 N. E. 144.

[4] A warrant of search and seizure issued by a justice of the peace or mayor is not required to be under seal unless the statute so provides. Padfield v. Cabell (1743) Willes (Eng.) 411; State v. McNally (1852) 34 Me. 210, 56 Am. Dec. 650;Santo v. State (1855) 2 Iowa, 165, 63 Am. Dec. 487. The form of search warrant prescribed by statute in Indiana for use by justices of the peace only recites that it is “given under the hand” of the justice, and does not mention a seal. Section 1925, Burns' 1914; section 58, c. 169, p. 597, Acts 1905. The several statutes which authorize the issue of search warrants to discover and seize intoxicating liquor merely provide that the justice or other magistrate named therein “shall issue his warrant,” without any direction that it shall be under seal (section 8338, Burns' 1914; section 2, c. 16, p. 28, Acts 1907; section 8356y, Burns' Supp. 1921; section 25, c. 4, p. 27, Acts 1917), while the statute under which the warrant now being considered was issued merely provides that:

“Search warrants to search any place for still or distilling apparatus may be issued as now provided by law for searching for intoxicating liquor.” Section 2, c. 33, p. 107, Acts 1923.

[5] And in such matters a city judge, or mayor acting as such, has the jurisdiction of a justice of the peace. Section 8842, Burns' 1914; section 216, c. 129, p. 376, Acts 1905. The fact that the search warrant was addressed to the sheriff or any constable of the county, and not to the chief of police, did not affect its validity, the city judge having the powers of a justice of the peace.

[6] But it was shown by undisputed evidence, given by the officers who made the search, that on February 28, 1923, the day the search warrant was issued and placed in their hands for service, they went to the house described, which was about six miles away, and “went through the premises that day and found one of the stills and the mash”; that they “went through the house and store building and barn and everything” on that day, but did not find any persons there; that they went back again the next day (March 1st) and “went through the premises and searched the buildings again at that time, and again on the night of March 2,” but did not take the stills and implements because nobody was found using them; that they only had the one search warrant, and it was not until the fourth search, made on the 2d of March, 1923, that they found the stills in operation and found appellant there in possession of them. And certain evidence showing what was discovered and what was seized in making this fourth search, pursuant to the command of a warrant which before had been executed three times by searching the premises that often, was admitted over an objection stating those facts as the cause for asking that it be excluded.

This presents for decision the question whether or not a search warrant that had been used in making a search of the premises which was fully completed, but of which no return had been made, could authorize the officers who made that search to return and make a second, third, and fourth search of the same place, and whether the things they seized the fourth time which were not there when the first search was made, and testimony as to what they observed and what defendant was doing when they entered the fourth time by authority of the same warrant, were competent.

No authorities expressly deciding this question have been cited, and we know of none. Except for prescribing a form of warrant commanding the officer charged with its execution to “diligently search for” the articles named, and to bring the same “forthwith” before the magistrate who issued it (section 1925, Burns' 1914; section 58, c. 169, p. 597, Acts 1905), and providing by another section of the same act that any officer whose duty it is to execute any warrant legally issued in any criminal case, who shall unnecessarily delay to serve any such warrant which is delivered to him to execute, when it is in his power to serve the same, shall be punished by fine and imprisonment (section 2414, Burns' 1914; section 508, c. 169, p. 703, Acts 1905), the statutes of Indiana are silent on the subject, and the Constitution only provides that:

“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.” Section 11, art. 1, Const.; section 56, Burns' 1914, section 56; R. S. 1881.

In Gamble v. Keyes, 35 S. D. 644, 153 N. W. 888, the court held that, where the sheriff, on the afternoon of August 17, 1914, with a warrant for the arrest of J. G., entered the house where he lived with his wife and arrested him, and seized and carried away a quantity of intoxicating liquor of which he was found in possession, but inadvertently omitted to carry away a satchel or valise filled with bottles of whisky, also found in his possession when he was arrested, a deputy sheriff had no right to re–enter the house that evening and take away the valise full of whisky. Under the law of South Dakota the sheriff, on...