Morgan v. State

• Court: Indiana Supreme Court
• Writing for the Court: Myers, J.
• Citation: Morgan v. State, 197 Ind. 374, 151 N.E. 98 (Ind. 1926)
• Decision Date: 12 March 1926
• Docket Number: 24,659
• Parties: Morgan v. State of Indiana

151 N.E. 98

197 Ind. 374

Morgan v. State of Indiana

No. 24,659

Supreme Court of Indiana

March 12, 1926

1. INDICTMENT.---Indictment in the language of the statute defining the crime is sufficient when acts constituting violation thereof are set out therein.---Where the statute in defining a crime sets out the acts that will constitute a violation thereof, an indictment or affidavit substantially in the language of the statute is sufficient. p. 376.

2. INTOXICATING LIQUORS.---Indictment charging the felonious transportation of intoxicating liquor under Acts 1923 p. 108 held sufficient.---An indictment charging the felonious transportation of intoxicating liquor in an automobile substantially in the language of the statute (Acts 1923 p 108) held sufficient. p. 376.

3. INTOXICATING LIQUORS.---Title of act of 1923 (Acts 1923 p 108) making it a felony to transport intoxicating liquor in a vehicle covered the subject of the act.---The title of the act of 1923 (Acts 1923 p. 108) making it a felony to transport intoxicating liquors in a vehicle included the subject of the act so as not to violate Art. 4, 19 of the Constitution (122 Burns 1926). p. 377.

4. INTOXICATING LIQUORS.---Indictment charging transportation of intoxicating liquor in automobile not bad for uncertainty.---An indictment charging the transportation of intoxicating liquor in an automobile was not bad for uncertainty, although there were two acts (Acts 1923 pp. 70 108) making the transportation of intoxicating liquor a criminal offense, but the last was the only one that made transportation in a vehicle a crime. p. 377.

5. SEARCHES AND SEIZURES.---Admissibility of evidence obtained by unlawful search is properly presented by a motion before trial to suppress the evidence and objection to its admission when offered.---The admissibility of evidence obtained by an unlawful search is properly presented by a motion before trial to suppress the evidence and a timely objection to its admission when offered in evidence. p. 378.

6. SEARCHES AND SEIZURES.---Unlawful arrest cannot be the foundation for a lawful search, nor information obtained by an unlawful search furnish the basis for lawful arrest.---An unlawful arrest cannot be the foundation for a lawful search, nor information obtained by an unlawful search alone furnish the basis for a lawful arrest. p. 380.

7. SEARCHES AND SEIZURES.---Unlawful search cannot be validated by what afterwards takes place.---Where an arrest or search is unlawful to begin with, it is not made lawful by what afterwards takes place. p. 380.

8 ARREST.---Peace officer has no authority to make an arrest for misdemeanor not committed in his presence, and carrying a revolver concealed is not offense committed in his presence within the meaning of the law.---A peace officer has no authority to make an arrest for a misdemeanor not committed in his presence, and carrying a revolver concealed is not an offense committed in his presence within the meaning of the law. p. 381.

9. ARREST.---Peace officer may arrest without warrant when he has reasonable and probable cause to believe that the person arrested has committed a felony.---A peace officer may arrest without a warrant when he has reasonable and probable cause for believing that a felony is being or has been committed by the person arrested. p. 381.

10. ARREST.---Arrest without warrant held unwarranted and search of accused's automobile unjustified under facts stated.---The arrest, without warrant, of the driver of an automobile who, seeing a truck in the highway surrounded by a small group of men, stopped his car, and joined them, was unwarranted and a search of his car unjustified, where he had committed no observable offense in the presence of the officers and they had no knowledge or even suspicion that he had violated the law in any manner, although their search of the car revealed a pint bottle of whisky of the same kind as found in the truck and a search of his person after his arrest disclosed the fact that he was carrying a weapon concealed in violation of law, and evidence obtained by such search should Rave been suppressed on motion to that effect. p. 382.

From Marion Criminal Court (55,752); James A. Collins, Judge.

George Morgan, alias John Marcus, was convicted of unlawfully transporting intoxicating liquor in an automobile, and he appeals.

Reversed.

Emsley W. Johnson, Ryan, Ruckelshaus & Ryan, T. Ernest Maholm and W. F. Elliott, for appellant.

U. S. Lesh, Attorney-General and Mrs. Edward Franklin White, Deputy Attorney-General, for the State.

OPINION

Myers, J.

In the court below, appellant was convicted of feloniously transporting intoxicating liquor in an automobile, in violation of § 1, Acts 1923 p. 108. On appeal from the judgment rendered against him, he has assigned as errors the overruling of his motion to quash the indictment and the overruling of his motion for a new trial.

The indictment charges, in substance, that appellant, on December 16, 1923, in Marion county, Indiana, "did then and there unlawfully, knowingly and feloniously transport intoxicating liquor in an automobile within said county and state." By the motion to quash, appellant asserts that the indictment does not state a public offense, nor does it state an offense with sufficient certainty, in that: (1) Transportation of intoxicating liquor within the county is not a felony; (2) that the foregoing act is unconstitutional and void for the reason that its title discloses its subject as intoxicating liquor only, while the body makes the subject of the act vehicle transportation of intoxicating liquor; (3) that the indictment is uncertain and indefinite because the accused, from the language of the indictment, could not certainly know whether he was being prosecuted under § 1, supra, for a felony, or under an act passed three days earlier (Acts 1923 p. 70) making it a misdemeanor to transport intoxicating liquor.

Answering appellant's first contention, this court has ruled that, as a matter of pleading, when the statute defining the crime includes the acts which constitute it, the affidavit or indictment substantially in the language of the statute is sufficient. Shine v. State (1925), 196 Ind. 686, 148 N.E. 411; Simpson v. State (1925), 195 Ind. 633, 146 N.E. 747; Anderson v. State (1924), 195 Ind. 329, 145 N.E. 311.

Appellant's second objection to the indictment, as we understand him, is predicated upon the theory that the title of the act said to have been violated by him was deceptive and served to screen its real subject and purpose as expressed in the body thereof, thus rendering it indefinite, uncertain, and therefore void. The section of the act defining the crime and fixing the penalty for its violation, consists of twenty-one lines of the printed acts, and is entitled, "AN ACT concerning intoxicating liquors, and declaring an emergency." The title is general and unrestricted. It is sufficient to notify the members of the legislature and the public that the proposed legislation was on the subject of intoxicating liquor. Notice of the subject-matter being sufficient, it must necessarily follow that such notice will be deemed adequate to claim the attention of those interested in the purpose and object to be attained by the bill, if given legislative sanction. Looking to the title and to the body of the act, it seems to us there is no escape from the conclusion that, although "intoxicating liquors" is the subject of the act, the means of transporting the same, whether by certain vehicles or otherwise, is a matter clearly germane to and properly connected with the subject expressed in the title, within the meaning of the Constitution. Art. 4, § 19 Constitution; Gmeiner v. State (1925), ante 43, 149 N.E. 728, and cases cited; State v. Bailey (1901), 157 Ind. 324, 61 N.E. 730, 59 L. R. A. 435.

Appellant's third objection to the indictment must be denied for the reason the indictment upon which he was tried expressly charged him with transporting intoxicating liquor in a vehicle. As there is but one statute making such transportation a crime, it can hardly be supposed that this distinguishing feature was not sufficient to dispel the belief that he was being prosecuted under another statute containing no such characterization.

Appellant, by his motion for a new trial, in addition to the claim of insufficient evidence, has properly presented for review the action of the court in overruling his motion to suppress, and the overruling of his objections made at the trial to the admission of, all evidence pertaining to all matters discovered by the search of his automobile. The motion to suppress and the objections to the questioned evidence were based upon constitutional grounds. We are not advised as to whether or not the trial court heard any evidence on the motion to suppress, but inasmuch as this motion was overruled and the evidence sought to be suppressed was thereafter, over timely objections, received at the trial, the question of its admissibility is undoubtedly presented. People v. Marxhausen (1919), 204 Mich. 559, 171 N.W. 557, 3 A. L. R. 1505; 10 R. C. L. 933.

The testimony of the sheriff of Marion county, his son, a deputy a federal prohibition officer, three members of the Horse Thief Detective Association, and a pint bottle of whisky was all the evidence given in this case. Speaking generally, the witnesses corroborated each other. This case, as disclosed by the evidence, originated on December 15, 1923, at about 8:30 o'clock in the evening, when the sheriff and the five other officers were around and about an Oldsmobile truck, headed east, standing on the National road, or West Washington street in Indianapolis, in charge of one Doncaster. Why the truck was...