Nelson v. State , No. 24999.

• Docket Nº: No. 24999.
• Citation: 200 Ind. 292, 163 N.E. 95
• Case Date: October 05, 1928
• Court: Supreme Court of Indiana

200 Ind. 292
163 N.E. 95

NELSON
v.
STATE.

No. 24999.

Supreme Court of Indiana.

Oct. 5, 1928.

Appeal from Criminal Court, Lake County; Martin J. Smith, Judge.

Ed. Nelson was convicted of maintaining a common nuisance, and he appeals. Affirmed.

Hyman M. Cohen, of East Chicago, and Ibach, Gavit, Stinson & Gavit, of Hammond, for appellant.

Arthur L. Gilliom, Atty. Gen., and Edward J. Lennon, Jr., Deputy Atty. Gen., for the State.

WILLOUGHBY, J.

Appellant was convicted of maintaining a common nuisance in violation of the laws of the state of Indiana, section 24, p. 144, c. 48, Acts 1925. 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 errors 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.

[1] 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 section 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, 196 Ind. 640, 149 N. E. 163;Volderauer v. State, 195 Ind. 415, 143 N. E. 674;Zimmerman v. Gaumer, 152 Ind. 552, 53 N. E. 829.

Specifications 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

[163 N.E. 96]

the motion of defendant to quash the search warrant. The motion alleged that the description of the premises in said search warrant is 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 section 2325, 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...