Shepherd v. State
| Decision Date | 13 December 1928 |
| Docket Number | No. 25354.,25354. |
| Citation | 164 N.E. 276,200 Ind. 405 |
| Parties | SHEPHERD et al. v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Pike Circuit Court; Jno. F. Dillon, Judge.
Ruth Shepherd and husband were convicted for maintaining a common liquor nuisance, and they appeal. Reversed, with instructions.
William D. Hardy, of Evansville, for appellants.
Arthur L. Gilliom, Atty. Gen., and Harry L. Gause, Asst. Atty. Gen., for the State.
Appellants, husband and wife, were convicted and sentenced for maintaining a common nuisance under section 24, c. 48, Acts 1925; section 2740, Burns' 1926. They have assigned as error the overruling of their several motions for a new trial, in each of which motions more than 20 causes are alleged, but it will not be necessary to consider all of them.
The evidence consisted of a quantity of intoxicating liquor obtained by a search of appellant's premises under a search warrant, of certain statements made by appellant Ruth Shepherd while quarreling with the officers during the search, and the testimony of eleven witnesses, one of whom was appellant Boyd Shepherd's sister, as follows: That they knew appellants, were acquainted with the place they lived, and acquainted generally with the people who live in that neighborhood and with the general reputation of appellant's place as to its being a place where intoxicating liquor was kept and sold and as to its being a place where people were permitted to resort for the purpose of drinking intoxicating liquor, and that such reputation was bad.
[1][2] The affidavit upon which the search warrant was issued was made upon information and belief in the form prescribed by the statute (section 2086, Burns' 1926); the issuing magistrate testified that he first saw the affidavit five minutes before he issued the search warrant, and the trial court sustained the state's objection to a question asking whether that was all the evidence before the mayor, and the defendant offered to prove that the affidavit was all the evidence before the mayor. Under the rule announced in Wallace v. State (1927) 199 Ind. 317, 157 N. E. 657, there was not such a showing here of probable cause as justified the issuance of the search warrant, and the court erred in admitting the evidence obtained by virtue thereof. With this evidence eliminated there is not sufficient evidence remaining in the record to sustain the verdict, all the other evidence proving only that the premises bore a bad reputation as a place where liquor was kept and sold...
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