Rohlfing v. State, 28506.

• Decision Date: 20 October 1949
• Docket Number: No. 28506.,28506.
• Parties: ROHLFING v. STATE.
• Court: Indiana Supreme Court

227 Ind. 619

88 N.E.2d 148

ROHLFING

v.STATE.

No. 28506.

Supreme Court of Indiana.

Oct. 20, 1949.

Virgil Rohlfing was convicted in the Circuit Court of Decatur County, Grant Rogers, J., of receiving stolen goods, and he appealed.

The Supreme Court, Jasper, J., reversed the judgment, and held that the defendant could not complain of remarks of the prosecuting attorney which were invited by defendant's counsel, and that the affidavit for issuance of a search warrant failed to show probable cause.Emerson Brunner, Shelbyville, Wickens & Wickens and Frank Hamilton, Greensburg, for appellant.

J. Emmett McManamon, Attorney General, Charles F. O'Connor, Deputy Attorney General, and Merl M. Wall, Deputy Attorney General, for the State.

JASPER Judge.

Appellant was charged by affidavit with receiving stolen goods under § 10-3017, Burns' 1942 Replacement. He was tried by jury, convicted, and sentenced.

The record discloses that a search warrant was issued, and that, prior to the trial, an amended verified motion to quash the search warrant and suppress the evidence was filed. A hearing was held on the amended verified motion and it was overruled by the court.

Appellant presents only two questions before this court under his specifications raised in his motion for a new trial: (1) The alleged error of the court in overruling appellant's amended verified motion to quash the search warrant and suppress the evidence, and (2) the alleged error of the court in failing to instruct the jury to disregard prejudicial remarks of the prosecuting attorney in his closing argument, and failure of the court to set aside the submission and discharge the jury.

Appellant first contends that the affidavit for the issuance of a search warrant fails to show probable cause. The record shows that, in addition to the affidavit for the search warrant, oral testimony of two witnesses was heard, the substance of which testimony was placed in the search warrant, but not reduced to affidavit form. The affidavit in the search warrant was based on information and belief. It states in part: ‘* * * and that Cleo Youngman of Napoleon Indiana has informed this affiant that he purchased a Winchester rifle Model 52 that had the serial number filed off of it from the said Virgil Rohlfing and John Layton captan of Police in Greensburg, Indiana has identified said gun as one of the guns stolen from the said Al Doerflinger and further the said Cleo Youngman informed this affiant that he saw a Remington Automatice Shotgun 16 guage, new and one Remington pump gun 12 guage, new and other guns in the home of the aforesaid Virgil Rohlfing at 639 West Central Avenue Greensburg, Indiana Decatur County.’

The search warrant recites therein that: ‘Upon the filing of said affidavit testimony of John W. Layton and Earl Marlowe was heard immediately who testified that the gun recovered was the property of Al Doerflinger and was stolen from said Doerflinger and that Cleo Youngman bought the same from Virgil Rohlfing.’

This court has held that an affidavit upon information and belief, and containing only affiant's conclusion upon probable cause, is not of itself sufficient basis for a search warrant. The search warrant and the statements upon oath and affirmation upon which probable cause is based must comply strictly with the Constitution and statutory law which permits a search and seizure. Wallace v. State, 1927, 199 Ind. 317, 157 N.E. 657;¹Bedenarzik v. State, 1933, 204 Ind. 517, 185 N.E. 114.

The Legislature, in 1933, amended § 9-602, Burns' 1942 Replacement, Acts 1933, ch. 248, § 1, p. 1121, by adding the following paragraph: ‘If any other evidence be heard for the purpose of establishing probable cause, such evidence shall be reduced to writing and filed with the affidavit for the search warrant.’

The Legislature, in 1941, amended the search warrant act, Acts 1941, ch. 160, § 2, p. 489, by deleting the above-quoted paragraph. The present act therefore makes no reference to oral evidence. The search warrant act in this state, in so far as probable cause is concerned, is the same as it was prior to the 1933 act, and does not provide for the hearing of oral evidence upon which to base probable cause. Bedenarzik v. State, supra; Heyvert v. State, 1935, 207 Ind. 654, 194 N.E. 324;Barrar v. State, 1934, 207 Ind. 706, 193 N.E. 94.

Our statute providing for the copying of the affidavit into the search warrant, being § 9-603, Burns' 1942 Replacement, is for a definite purpose. It is through this procedure that the person against whom the search warrant is issued is advised of the person making the charge. Oral testimony takes this right away. The case of Gwinn v. State, 1929, 201 Ind. 420, 166 N.E. 769, which approved the taking of other testimony, was overruled by implication in Bedenarzik v. State, supra.

The search warrant in this case was not sufficient to show probable cause for the reason that the material part of the affidavit showing probable cause was based on hearsay. The judicial determination of probable cause as required herein must be based on facts and not on hearsay. Wallace v. State, supra, at page 329 of 199 Ind., 157 N.E. 657;...