Moore v. State

• Decision Date: 23 December 1927
• Docket Number: No. 25363.,25363.
• Citation: 159 N.E. 154,199 Ind. 578
• Parties: MOORE v. STATE.
• Court: Indiana Supreme Court

199 Ind. 578

159 N.E. 154

MOORE

v.STATE.

No. 25363.

Supreme Court of Indiana.

Dec. 23, 1927.

Appeal from Elkhart Circuit Court; James S. Drake, Judge.

James M. Moore was convicted of transporting intoxicating liquor, and he appeals. Affirmed.

Guy W. Dausman, of Goshen, for appellant.

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

TRAVIS, J.

Appellant was convicted of transporting intoxicating liquor (section 4, c. 48, Act 1925 [section 2717, Burns' 1926]), and assigns as error, upon appeal, the overruling of his motion for a new trial.

[1][2][3][4] One of the alleged errors sought to be presented upon appeal is:

“The court erred in sustaining the state's demurrer to the plea in abatement filed by the appellant.”

This is the first cause alleged in the motion for a new trial. A plea in abatement must be filed before a plea in bar. As a pleading, it is analogous to a motion to quash, the difference being that the latter is directed to what appears upon the face of the pleading attacked (Williams v. State [1919] 188 Ind. 283, 123 N. E. 209), and the former to what does not appear upon the face of the pleading attacked-behind the pleading. Errors predicated upon the court's decision pertaining to a motion to quash are no part of the trial upon the merits, and may not be presented for consideration upon appeal, through the office of a motion for a new trial; the alleged error must be presented by a direct assignment of error. Nafe v. Leiter (1885) 103 Ind. 138, 2 N. E. 317;Utley v. State (1924) 194 Ind. 187, 142 N. E. 377;Hunt v. State (1921) 191 Ind. 406, 409, 133 N. E. 8. And, by analogy, the alleged error based upon the ruling which sustains the demurrer to the plea in abatement, being no part of the trial of the merits, may not be presented by alleging such ruling as erroneous in a motion for a new trial. Such an alleged error must be pleaded in the assignment of errors. Leach v. Prebster (1872) 39 Ind. 492.

[5] Even though appellant did not present the action of the court in sustaining appellee's demurrer by a separate assignment of error, the action of the court is not presented because of another reason. The plea in abatement is not set out in appellant's brief, neither is the substance of it. Briles v. State (1926) 198 Ind. 689 (1), 154 N. E. 659.

[6] Next the attempt is made to present the proposition of law in this case, that the search warrant, through which the evidence introduced against appellant was procured, was issued on an affidavit based solely upon suspicion, and was therefore of no value. The question presented by this proposition is not before the court for the reason that the brief does not contain the affidavit for the search warrant, the search warrant, or return thereon; neither was there a motion to quash the search warrant, nor a motion to suppress evidence because of an invalid search warrant, nor was there any evidence presented during the trial nor objection by appellant for the reason that such evidence was gained wholly and solely by an invalid search warrant, which latter question would be presented by errors predicated upon the admission or exclusion of evidence over objection.

[7] The next proposition is that:

“Evidence secured by a search warrant...