Nelson v. State
| Citation | 163 N.E. 95,200 Ind. 292 |
| Decision Date | 05 October 1928 |
| Docket Number | 24,999 |
| Parties | Nelson v. State of Indiana |
| Court | Supreme Court of Indiana |
1. CRIMINAL LAW---Suppression of Evidence---How Presented for Review on Appeal.---In order to raise any question on appeal as to the action of the court in overruling a motion to suppress evidence because obtained by means of an invalid search warrant, such ruling must be specified as a reason for a new trial under the first subdivision of 2325 Burns 1926 and cannot be assigned as an independent error. p. 293.
2. APPEAL---Erroneous Ruling on Motion---How Established on Appeal.---Erroneous action of the trial court in overruling a motion can only be established on appeal by presenting a record affirmatively showing the existence of facts which imposed a duty to sustain the motion, and the averments in the motion itself cannot be accepted as establishing the truth of what is therein stated where evidence was heard by the court on which it acted in overruling the motion. p. 294.
3. APPEAL---Briefs---Waiver of Error.---Any error in the admission of evidence is waived by appellant's failure to point out in his brief the pages and lines of the transcript where such error may be found (Supreme Court Rule 22, clause 5). p. 295.
4. SEARCHES AND SEIZURES---Search Warrant---Description of Place to be Searched.---A search warrant describing the place to be searched as "a certain house, store or building, to wit the soft drink bar, residence, storeroom, upper floors and basement in the two-story brick building and outbuildings in the rear thereof," at a certain street number in a named city, "being the premises of John Doe, whose true name is unknown" was sufficient to authorize the search of the entire premises at that number (Thompson v. State, 198 Ind. 496, distinguished). p. 295.
5. APPEAL---Waiver of Errors---Briefs.---Errors assigned on appeal are waived when not set out in the "points and authorities" part of appellant's brief and supported by authorities. p. 296.
6. CRIMINAL LAW---Appeal---Insufficiency of Evidence---Preparation of Brief.---One seeking the reversal of a judgment of conviction because the finding was not sustained by sufficient evidence must, in the "points and authorities" part of his brief, point out wherein the evidence was insufficient to prove some material element of the crime. p. 297.
7. CRIMINAL LAW---Circumstantial Evidence---Rule in Trial Court.---The rule that circumstantial evidence to sustain a conviction must be of a conclusive character, and must exclude every reasonable hypothesis of innocence of the accused, is for the guidance of the trial court, and does not apply on appeal. p. 298.
From Lake Criminal Court; Martin J. Smith, Judge.
Ed Nelson was convicted of maintaining a liquor nuisance, and he appeals.
Affirmed.
Hyman M. Cohen and Ibach, Gavit, Stinson & Gavit, for appellant.
Arthur L. Gilliom, Attorney-General, and Edward J. Lennon, Jr. Deputy Attorney-General, for the State.
Appellant was convicted of maintaining a common nuisance in violation of the laws of the State of Indiana, Acts 1925 p. 144, § 24. The errors assigned challenge the rulings of the court on the motion to quash the search warrant and to suppress certain evidence and in overruling appellant's motion for a new trial. The assignment of error is: (1) That the court erred in overruling appellant's motion and petition to suppress certain evidence and quash the search warrant; (2) the court erred in overruling appellant's motion for a new trial. The first alleged error is not properly assigned. The action of the court in overruling a motion to suppress evidence must be specified as a reason for a new trial under the first subdivision of § 2325 Burns 1926. The action of the court in overruling appellant's motion and petition to suppress evidence and quash the search warrant cannot be assigned as an independent error on appeal. Chappelle v. State (1925), 196 Ind. 640, 149 N.E. 163; Volderauer v. State (1924), 195 Ind. 415, 143 N.E. 674; Zimmerman v. Gaumer (1899), 152 Ind. 552, 53 N.E. 829.
Specifications Nos. 1, 2 and 3 of appellant's motion for a new trial allege that the court erred in overruling defendant's motion to suppress all the evidence obtained by virtue of the search warrant and in refusing to sustain the motion of defendant to quash the search warrant. The motion alleged that the description of the premises in said search warrant was too vague, indefinite and too uncertain and that the prosecuting attorney, federal officers and other officers concerned in said search and seizure, the names of whom are unknown to this affiant, took the said property and are now holding the same, and that the said property is being unlawfully held and detained in violation of defendant's rights under the Constitution of the United States, and of the State of Indiana. That said prosecuting attorney purposes to use said chattels and said liquid so seized as evidence against this affiant unless the court suppress all evidence so seized illegally and that anything there found, heard and learned, while making said illegal search and seizure, be suppressed as evidence against this affiant.
The state filed an answer in general denial to this motion. Evidence was heard by the court on the motion and after the consideration of such evidence, the court overruled the motion.
In Chappelle v. State, supra, the court held that whatever error, if any, the trial court may have committed in overruling a motion to suppress evidence, and thereafter admitting such evidence against appellant, should be specified as a cause for a new trial under the first subdivision of § 2825 Burns 1926, as being an irregularity in the proceedings by which the complaining party was prevented from having a fair trial, and not as an independent error. That the action of the trial court in overruling a motion was erroneous can only be established on appeal by presenting a record affirmatively showing the existence of facts which imposed a duty to sustain the motion. Averments in the motion itself cannot be accepted as establishing the truth of what is therein stated, where it appears, as it does here, that evidence was heard on which the court acted in overruling the motion.
The appellant also urges, as a third specification in the motion for a new trial, that the court erred in admitting in evidence over the objection of the defendant, the evidence of what was found, seen or heard on the premises of the defendant at the time the search was made, on April 14, 1925, to which ruling of the court the defendant duly excepted. This error, if any, is waived by the failure of the appellant to point out in his brief the pages and lines of the transcript where such error may be found as required by the fifth clause of Rule 22 of the Supreme Court.
In Thompson v. State (1925), 196 Ind. 229, 147 N.E. 778, it was held that a search warrant describing the place to be searched as the building and all outbuildings commonly known as No. 30 Lower Third Street in the city of Evansville, authorized the search of all parts of the building at No. 30 Lower Third Street. In the instant case the search warrant directs the officers to search a certain house, store or building in this district, to wit: soft drink bar, residence, storeroom, upper floors and basement in two-story brick building, and outbuildings in the rear thereof, at 3424 Pennsylvania Avenue, in the city of East Chicago, Indiana, being the premises of John Doe, whose true name is...
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