Shuck v. State

• Decision Date: 15 February 1945
• Docket Number: 28027.
• Citation: 59 N.E.2d 124,223 Ind. 155
• Parties: SHUCK v. STATE.
• Court: Indiana Supreme Court

59 N.E.2d 124

223 Ind. 155

SHUCK v. STATE.

No. 28027.

Supreme Court of Indiana

February 15, 1945

Appeal from Vanderburgh Circuit Court; Nat H. Youngblood judge.

Theodore Lockyear and Paul Weaver, both of Evansville, for appellant.

James A. Emmert, Atty. Gen., and Frank E. Coughlin and Frank Hamilton, Deputy Attys. Gen., for appellee.

RICHMAN Judge.

The owner of personal property taken in a burglary was called as a witness to testify that he found and identified the stolen property in the apartment of appellant which the witness had entered with police officers after appellant's arrest and in his absence. This testimony forms a vital link in the chain of evidence necessary to sustain appellant's conviction. A few preliminary questions elicited the information, later stipulated by appellee, that the apartment was entered without a search warrant. Appellant's objection to the evidence on the ground that it was obtained by illegal search was overruled and the alleged error is properly presented in this appeal.

Upon what theory the trial judge made the ruling is not disclosed but appellee argues that the question of admissibility involves a collateral inquiry tending to delay the trial, that a pre-trial motion to suppress the evidence was the only method by which its admissiblity could be raised, and therefore appellant's objection came too late. In support of this view appellee cites Hantz v State, 1929, 92 Ind.App. 108, 166 N.E. 439; McSwain v. State, 1929, 89 Ind.App. 592, 166 N.E. 444, 167 N.E. 568; People v. Castree, 1924, 311 Ill. 392, 143 N.E. 112, 32 A.L.R. 357; People v. Brocamp, 1923, 307 Ill. 448, 138 N.E. 728; Adams v. People of State of New York, 1904, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575; and six notes in American Law Reports, 24:1408; 32:408; 41:1145; 52:477; 88:348 and 134:819. Appellant relies upon Karlen v. State, 1930, 204 Ind. 146, 174 N.E. 89 and Heyvert v. State, 1935, 207 Ind. 654, 194 N.E. 324. The A.L.R. notes disclose a sharp conflict of authority on the admissibility of evidence procured by illegal search or seizure. In about half of the states, including Indiana, it is not admissible over proper and timely objection. The parties to this appeal accept that view. But they differ as to the time when and the method by which the objection must be made.

There are five other cases reported in the same volume with McSwain v. State, supra, all based upon Hantz v. State. In each of the Appellate Court cases and People v. Castree, supra, officers armed with a search warrant obtained the evidence and when, during the trial, objection was made to its admission the controversy was concerning the validity of the proceedings resulting in issuance of the warrant. This, the courts said, was a collateral inquiry which should have been settled before the trial. It is not now necessary to decide whether they were right, for in the case at bar the facts were different in that no search warrant was issued. A similar case was Youman v. Commonwealth, 1920, 189 Ky. 152, 224 S.W. 860, 13 A.L.R. 1303, cited, probably inadvertently, by Judge McMahan in Hantz v. State as supporting his view. Declining to follow Adams v. New York, supra, Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177, and subsequent federal cases which are the main support of the Hantz opinion, the opinion of Chief Justice Carroll states [189 Ky. 152, 224 S.W. 867]:

'In our practice the proper time, and the only time, in which objection can be made to the introduction of evidence by the mouth of witnesses, is when it is offered during the trial, and we cannot think of any good reason why this practice should not obtain in a case like the one we are now considering. We confess our inability to appreciate the force of the reasoning that has resulted in the adoption of the rule that an exception to the general practice should be made in cases like this, on the ground that, if objection to the introduction of the evidence unlawfully obtained was permitted to be first made when it was offered in the course of the trial, the result would be to delay unnecessarily the trial of the case and require the court to go into a collateral issue for the purpose of determining whether the evidence offered had been lawfully or unlawfully obtained.

'It is a matter of common experience in the practice of law that in almost every jury trial the court must occasionally stop for a time to pass on the competency of evidence to which objection is made, for the purpose of considering the questions raised, and in some cases, as, for example, where a dying declaration is offered in a homicide case and objection is made to its competency, it is the general practice for the court to hear away from the jury the evidence relating to the declaration, for the purpose of determining whether it should be admitted. In the trial of other cases, such as burglary, arson, robbery, and embezzlement, evidence of other crimes committed by the accused is often admissible against him, although evidence of this nature may bring into the case collateral issues. Morse v. Com., 129 Ky. 294, 111 S.W. 714. And we do not quite understand how objection to evidence on the ground that it was unlawfully obtained would unreasonably delay the trial of the case, any more so than would an objection made to other important evidence, or how it would inject into the case a collateral issue that would take more time to dispose of than would be required in the disposition of questions involving collateral issues that come up in the trial of almost every important case.

'Certainly, when it was made to appear without dispute, as in this case, that the officer searched the premises without a search warrant, it would not unreasonably delay the trial of the case to make the objection when the evidence was offered, and have the court then determine as a matter of law the competency of the evidence. Nor would it put into the case a collateral issue of any kind. But if there should be a dispute as to whether the search was lawfully made, the court could and should easily and speedily ascertain the truth, and determine the competency of the evidence, by hearing away from the jury the facts that would enable it to pass on the question.

'With the greatest respect for the courts holding that the objection must be made before the trial begins, we feel compelled to say that this practice is put on very narrow and to our minds untenable grounds. Upon mature consideration we are well satisfied that the general rules of practice prevailing in this state should apply in cases like this, and accordingly hold that seasonable objection was made to the introduction of the evidence, and that all evidence discovered in the course of the unlawful search should have been excluded from the jury.'

Upon this excellent reasoning we might rest our decision, but we prefer not to ignore the other cases cited by the parties. While the Hantz case was pending on petition to transfer this court decided Karlen v. State, supra. The appellant therein had driven his coupe at night to a stone quarry where policemen were in wait seeking to surprise and arrest 'bootleggers.' After some shooting appellant's companions were arrested, his automobile broken into and liquor found therein. There was no pretrial effort to suppress evidence but when the liquor was offered in evidence at the trial it was admitted over his objection. Judge Travis said in substance in the majority opinion that there was no evidence that appellant had committed or was about to commit a felony or misdemeanor or that the officers thought so and that there was no warrant for his arrest or search warrant. He added [204 Ind. 146, 174 N.E. 90]: 'Suspicion alone is not probable cause for a writ of arrest or for search and seizure, and, further, it is not probable cause for arrest or search and seizure without a writ, under circumstances such as are present here. * * * The questions which elicited the fact of search and seizure were met with proper objections. Appellant's objections to such questions should have been sustained. The evidence would then be insufficient to sustain the verdict.' Judge Martin dissented, citing the Hantz case and saying: 'If it is incorrect, it should not be ignored, but should be expressly overruled * * *.' To this there was no rejoinder. The judges concurring in the majority opinion evidently considered the rule stated by Judge McMahan inapplicable to the facts before them and we agree.

Four years later in Heyvert v. State, supra, where a search warrant had been issued, the appellant used both methods, the pre-trial motion to suppress and the objection when the evidence was offered during the trial. Judge Tremain said each was proper. The statement would have had more force as to the latter method if it alone had been questioned.

The parties cite no other Indiana cases, but we have found two, Callender v. State, 1922, 193 Ind. 91, 138 N.E. 817, and Mata v. State, 1932, 203 Ind. 291, 179 N.E. 916, that seem to support Judge Tremain's statement. The Callender cases appears to hold that even where a search warrant has issued objection to the evidence at the trial is sufficient. The opinion does not disclose any error assigned upon motion to suppress or that there was such a motion.

The attorney general admitted that 'The affidavit for search warrant and the search warrant issued thereon are not in the record * * *.' [193 Ind. 91, 138 N.E. 819] The court said: 'The question in the instant case is, not whether the liquor should have been returned to the defendant, but the question is: Shall the evidence of what was discovered by the invalid search warrant be permitted to be introduced over...