Morgan v. State

• Decision Date: 20 December 1923
• Docket Number: No. 24270.,24270.
• Court: Indiana Supreme Court
• Parties: MORGAN et al. v. STATE.

194 Ind. 39

141 N.E. 790

MORGAN et al.

v.STATE.

No. 24270.

Supreme Court of Indiana.

Dec. 20, 1923.

Appeal from Circuit Court, Gibson County; Robt. C. Batzell, Judge.

Simon Morgan and others were convicted of a violation of the liquor law, and appeal. Affirmed.Ely & Corn, Carl M. Gray, and John L. Sumner, all of Petersburg, and Duncan & Duncan, of Princeton, for appellants.

U. S. Lesh, Atty. Gen., and D. F. Stansbury, of Indianapolis, for the State.

EWBANK, C. J.

Appellants and another were prosecuted upon an affidavit which charged that at, etc., on, etc., they “did then and there, unlawfully manufacture, transport, possess, sell, barter, exchange, give away, furnish and otherwise dispose of intoxicating liquor, and did then and there unlawfully keep and possess intoxicating liquor with intent then and there unlawfully to sell,” etc.

[1][2][3][4][5] Before the trial commenced, appellant Nichols filed a verified petition for the return to him of certain wine and whisky which he alleged had been seized by the sheriff and other officers when searching his premises, asserting “That said searches and seizures were made in violation of” designated sections of the Constitutions of the state of Indiana and of the United States, but not stating any facts whatever as to the circumstances under which or the authority by which the liquor was seized. The record recites that the “court having examined said petition and being duly advised in the premises now overrules” the motion, and that the appellant Nichols excepted. And a bill of exceptions recites the verified petition and the docket entry stating that it was overruled and that he excepted; but it does not state whether any evidence was introduced by which the court was “fully advised,” nor what such evidence was, if any. No error in this ruling is shown. One who seeks affirmative relief on the ground that officers of the court have violated his constitutional rights in the execution of process has the burden of establishing facts from which it will affirmatively appear that his rights were invaded. The mere assertion in an affidavit of the conclusion of law that acts which the officers might lawfully do, if certain facts existed, were done in violation of designated sections of the Constitution, could not serve as evidence that the facts under which they might lawfully have acted without violation of those sections did not exist. And so far as appears the court may have denied the motion because the wine and whisky were seized under a search warrant issued by a magistrate after a proper affidavit had been filed with him. Evidence must consist of the proof of facts, not the mere assertion of conclusions of law. After the motion had been overruled and an exception taken, a jury was impaneled and evidence introduced. The evidence thereafter heard could not be considered in passing on the question whether or not the court had erred in its ruling on the preliminary motion, made before the trial began, even if the latter evidence were presented for consideration, which it is not, as will appear hereafter.

[6] Each appellant filed a motion for a new trial for the alleged reasons that the verdict is not sustained by sufficient evidence and is contrary to law, and that the court erred in admitting in evidence some of the liquor seized under a search warrant and the testimony of the officers as to what they learned when searching the home of appellants. The brief for appellants sets out four pages of what purports to be a narrative recital of the testimony of witnesses for the state. The testimony which it purports to narrate, as set out in the bill of exceptions in the transcript, with...