Onstott v. State

• Decision Date: 09 May 1928
• Docket Number: No. 24332.,24332.
• Citation: 161 N.E. 267,200 Ind. 37
• Parties: ONSTOTT v. STATE.
• Court: Indiana Supreme Court

200 Ind. 37

161 N.E. 267

ONSTOTT

v.STATE.

No. 24332.

Supreme Court of Indiana.

May 9, 1928.

Appeal from Starke Circuit Court; W. C. Pentecost, Judge.

Guy Onstott was convicted of having intoxicating liquor in his possession for the purpose of unlawfully disposing of it, and he appeals. Affirmed.William J. Reed, of Knox, and C. C. Campbell, of Rochester, for appellant.

U. S. Lesh, Atty. Gen., Mrs. Edw. F. White, Deputy Atty. Gen., and Dale F. Stansbury, of Williamsport, for the State.

WILLOUGHBY, C. J.

The appellant was tried for having intoxicating liquor in his possession for the purpose of unlawfully disposing of it in violation of chapter 250, Acts 1921, p. 736. He was tried by jury and convicted and sentenced to serve 90 days on the penal farm and fined $275. A motion for a new trial was overruled and judgment rendered on the verdict.

The errors relied on for reversal as stated in appellant's brief are: (1) The Starke circuit court erred in assuming jurisdiction to try this cause. (2) The Starke circuit court erred in overruling appellant's motion to dismiss this cause for want of jurisdiction to try it. (3) The Starke circuit court erred in overruling defendant's motion to suppress the evidence. (4) The Starke circuit court erred in overruling appellant's motion for a new trial.

The first and second errors relied on arise out of the claim of appellant that the Starke circuit court did not have jurisdiction to try the cause, because the proceeding was commenced by the filing of an affidavit in the city court of Rochester, Ind., and that the defendant was tried, convicted, and sentenced in said city court and appealed to the Fulton circuit court; that he then took a change of venue from the Fulton circuit court to the Starke circuit court, and the objection raised against the jurisdiction of the Starke circuit court is that the record does not show that an affidavit charging the appellant with the offense was filed in the Fulton circuit court and transmitted to the Starke circuit court with the transcript on change of venue, with the other papers in the cause.

The appellant in his brief under “Points and Authorities” says that the Starke circuit court had no jurisdiction to try the cause for the reasons above stated, and refers to section 2239, Burns' 1926, and section 2240, Burns' 1926, and claims that the court to which the venue was changed has no jurisdiction of the cause until the transcript and original papers are duly filed in the clerk's office of the court to which the change is granted, and he further states that the transcript must show that an affidavit or indictment had been filed in the Fulton circuit court and that when a change of venue was taken from the Fulton circuit court to the Starke circuit court the Starke circuit court did not have jurisdiction to try the cause unless the transcript showed that the affidavit in question had been filed in the Fulton circuit court. But it appears by the return to a writ of certiorari that before the trial the record had been corrected by nunc pro tunc entries so that at the time of such trial it shows that the appellant was tried and convicted in the city court of Rochester, then appealed to the Fulton circuit court, and from there took a change of venue to the Starke circuit court, and that the affidavit on which he was tried and convicted in the city court of Rochester was duly certified and delivered to the Fulton circuit court on appeal and from there to the Starke circuit court on change of venue and was duly and regularly on file in the Starke circuit court when appellant was tried. This return to the writ of certiorari shows that the Starke circuit court had jurisdiction to try the offense charged.

In proposition 3 appellant contends that the evidence upon which the appellant was convicted was procured under an unlawful search warrant and introduced over the objection of appellant. If this contention is true the verdict is not sustained by sufficient evidence. See Callender v. State, 193 Ind. 91, 138 N. E. 817.

In Tow v. State, 198 Ind. 253, 151 N. E. 697, it is said that errors assigned on appeal are waived when not stated in the “Points and Authorities” part of appellant's brief and supported by argument.

[1][2] The appellant's motion to suppress evidence is in substance as follows: That on the 14th day of March, 1922, the defendant was living at his home near Rochester and that the marshal of the city of Rochester and others, with a pretended search warrant, searched the premises occupied by appellant. That the search warrant was issued without authority of law and that they obtained liquor, some containers, and information by use of the search warrant which they would not otherwise have obtained, and that the defendant asked to have the liquor and containers returned to him, and the same as evidence and any information obtained by the use of the search warrant be suppressed. It will be observed that the appellant says that the search warrant was issued without any authority of law, but he does not point out why it was without any authority of law. In fact, he does not discuss the alleged illegality of...