Nelson v. State
| Decision Date | 05 October 1928 |
| Docket Number | No. 24999.,24999. |
| Citation | 200 Ind. 292,163 N.E. 95 |
| Parties | NELSON v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
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.
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 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 motion.
[2] 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 the 14th day of April, 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.
[3][4] In Thompson v. State, 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, Ind., being the premises of John Doe, whose true name is unknown. Under the ruling in the Thompson Case, supra, the description in the search warrant in the instant case is sufficient.
The appellant relies on Thompson v. State, 198 Ind. 496, 154 N. E. 278, in support of his proposition that the court erred in overruling his motion to quash the search warrant. But the appellant is not sustained in such contention, because in Thompson v. State, 198 Ind. 496, 154 N. E. 278, the evidence of the officers who participated in the raid, pertaining to the description of the building at 29 Mary street, was that it was an old residence containing ten rooms; that it was owned by appellant, who was a widower, and he occupied two rooms, and the others were let out to different families. The testimony shows that the officers searched only the two rooms, which the woman they had found in the building said were occupied by the appellant. There were four apartments in the house, not including the rooms occupied by this appellant. They had separate gas meters for each apartment, and according to this evidence it is clear that the appellant was not the occupant of the premises sought to be searched at 29 Mary street. The evidence shows that the occupants were different,...
To continue reading
Request your trial