Morgan v. State

• Decision Date: 12 March 1926
• Docket Number: No. 24659.,24659.
• Citation: 197 Ind. 374,151 N.E. 98
• Parties: MORGAN v. STATE.
• Court: Indiana Supreme Court

197 Ind. 374

151 N.E. 98

MORGAN

v.STATE.

No. 24659.

Supreme Court of Indiana.

March 12, 1926.

Appeal from Criminal Court, Marion County.

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

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

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

MYERS, J.

In the court below appellant was convicted of feloniously transporting intoxicating liquor in an automobile, in violation of section 1, Acts 1923, p. 108, c. 34. 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, Ind., “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 section 1, supra, for a felony, or under an act passed three days earlier (Acts 1293, p. 70, c. 23) making it a misdemeanor to transport intoxicating liquor.

[1][2] 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 (Ind. Sup.) 148 N. E. 411;Simpson v. State, 146 N. E. 747, 195 Ind. 633;Anderson v. State, 145 N. E. 311, 195 Ind. 329.

[3] 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 21 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. Constitution of Indiana, art. 4, § 19; Gmeiner v. State (Ind. Sup.) 149 N. E. 728, and cases cited; State v. Bailey, 61 N. E. 730, 157 Ind. 324, 59 L. R. A. 435.

[4] 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 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.

[5] 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.

[6] 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. 171 N. W. 557, 204 Mich. 559, 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 standing there, or how it came to stop there, does not appear. While the sheriff was talking to Doncaster, appellant came from the west in an automobile, passed around the truck and officers to a point about 50 feet east of the sheriff's automobile standing east of the truck. The distance between the truck and this automobile is not shown. As soon as appellant stopped his machine, he alighted, returned to where the officers were standing, and, from anything appearing, he voluntarily said, “Just came back to see what the trouble was,” or that “he was just passing by and saw the trouble and stopped.” No one requested him to stop or that he get out of the car. There is no showing that appellant committed any observable offense in the presence of the officers, nor that prior to the search of his car did they have any knowledge or suspicion that he was in any wise connected with the truck, or that he was violating the law in any manner. The sheriff testified that when appellant “came back to the truck, I had other officers out there, and they were searching the (appellant's) car,” although we had no warrant to search the car, grips, or suit case, nor warrant for appellant's arrest. As appellant was returning to his car, one of the horse thief detectives, a Mr. Riddle, started after him, caught up with him, and as he turned around this officer grabbed hold of his coat lapel. Appellant then put his left hand in his overcoat pocket. The officer grabbed it and held it there, at the same time pushing a revolver against him, telling him to take his hand off his gun. About that time the sheriff's son came up, pointed a gun at appellant's face, saying, “Stick 'em up,” which he did. He took appellant's revolver and arrested him. Neither of these officers participated in the search. They stood there three or four minutes while the car was being searched by two other horse thief detectives, and then appellant was taken back to the sheriff, then to the Marion county jail. The search of the car resulted in finding two grips and one suit case, and in one of the grips a pint bottle of whisky. Otherwise, the grips and suit case contained ordinary wearing apparel. There was testimony to the effect that the liquor was found in one of the grips while appellant was present at the car, and that he claimed the officers had planted it there. At the jail the grips and suit case were again searched, but nothing additional was found.

The inferences to be drawn from the contradictory statements between Doncaster and appellant at the jail or after the search or arrest, the ownership of one of the grips, and that the pint of liquor was the same as that in the barrels in the truck, can have no bearing or influence upon the question of whether or not the officers were justified in searching the automobile at the time they did, or as bearing upon their authority to make a lawful arrest at the time it was made.

[7] The most that can be said for the evidence most favorable to the state is that the officers were engaged in searching appellant's car at the time he was arrested and finished the search after his arrest. Generally speaking, the law is well settled that an unlawful arrest cannot be the foundation for a lawful search, nor will information obtained by an unlawful search alone furnish the basis for a lawful arrest; or, we may say, as a general proposition of law, that where the arrest or search is unlawful to begin with, it is not made lawful by that which afterwards takes place. Batts v. State, 144 N. E. 24, 194 Ind. 609;Weeks v. United States, 34 S. Ct. 341,...