McSwain v. State
| Decision Date | 10 May 1929 |
| Docket Number | 13,663 |
| Citation | 166 N.E. 444,89 Ind.App. 592 |
| Parties | MCSWAIN v. STATE OF INDIANA |
| Court | Indiana Appellate Court |
Rehearing denied August 1, 1929, Reported at: 89 Ind.App. 592 at 596.
From Vanderburgh Circuit Court; Charles P. Bock, Judge.
Commodore McSwain was convicted of maintaining a liquor nuisance, and he appealed.
Affirmed.
William D. Hardy, for appellant.
Arthur L. Gilliom, Attorney-General, and Harry L. Gause, Deputy Attorney-General, for the State.
The appellant was charged by affidavit with maintaining a nuisance under the liquor law. The affidavit was filed in the Vanderburgh Circuit Court on May 9, 1927. The appellant entered a plea of not guilty on May 10, 1927, and the case was heard by the court on May 24, 1927. The court found the appellant guilty of maintaining a nuisance as charged and affixed his punishment at a fine of $ 200 and imprisonment on the Indiana State Farm for a period of sixty days. Appellant presented his motion for a new trial and reasons therefor based upon the following causes, viz.: (a) The finding of the court is not sustained by sufficient evidence; (b) the finding is contrary to law; (c) errors of law occurring at the trial, in this, to wit: In permitting the officers to testify what was seized by them and what they observed on the premises of the appellant while in the act of executing a search warrant. The error assigned is the overruling of the motion for a new trial.
The evidence is to the effect that the premises of appellant consisted of one large room, the front part being separated from the rear by a partition with a door which was locked by a Yale lock. The front part of the room was used by the appellant as a tin shop, the rear as a place to sleep, eat and "drink." The door in the partition was provided with a peep hole. The officers entered the open door at the front, announced that they were officers, proceeded toward the rear of the room, and again announced that they were officers and had a search warrant for the place and demanded admission.
The rear of the room was occupied by several men, including appellant. One of the men in the rear of the room looked through the peep hole in the partition and saw the officers enter the front door; immediately confusion took place; the police could hear the men pouring a liquid into a receptacle the officers then forced the door and stopped the appellant and others from destroying the intoxicating liquor and proceeded to read the search warrant to appellant. The appellant had poured the whisky into the sink and was in the act of flushing the sink with lysol. The officers found a whisky glass in the room and whisky bottles...
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