Speybroeck v. State

• Decision Date: 06 April 1927
• Docket Number: 25,215
• Citation: Speybroeck v. State, 200 Ind. 69, 155 N.E. 817 (Ind. 1927)
• Parties: Speybroeck v. State of Indiana
• Court: Indiana Supreme Court

155 N.E. 817

200 Ind. 69

Speybroeck v. State of Indiana

No. 25,215

Supreme Court of Indiana

April 6, 1927

Rehearing Denied May 16, 1928.

1.SEARCHES AND SEIZURES---Soft-Drink Parlor Public Place.---A soft drink parlor is a public place and no search warrant is needed by officers to enter it. p. 72.

2.SEARCHES AND SEIZURES---Service of Writ---Officer must Inform Defendant.---Although the search-warrant statutes are silent on the point, the general statute regulating the manner of making arrests requires an officer to inform the defendant that he is acting under a warrant, and one of the essentials of a legal search is that the officer must make known the authority under which he acts. p. 72.

3.CRIMINAL LAW---Unlawful Search---Search Without Referring to Warrant.---A search of a soft-drink parlor by officers without reading or referring to a search warrant under which they were acting, no violation of the law being apparent, was unlawful, and evidence obtained thereby was inadmissible against the owner or manager of the premises. p 72.

4.CRIMINAL LAW---Good and Bad Counts---General Verdict---Presumption.---Where an indictment contains two counts, one good and the other bad, a general verdict of conviction is presumed to be on the good count. p. 73.

5.CRIMINAL LAW---Good and Bad Counts---Judgment Affirmed.---On appeal from a judgment of conviction on an indictment containing two counts, one of which was sustained by sufficient evidence and the other was not, the judgment will be affirmed if it was one that was authorized by the law on which the count sustained by the evidence was based. p. 73.

6.CRIMINAL LAW---Search Warrant---Denying Ownership or Control of Premises.---A defendant who denies that he was the owner or in possession or control of the premises searched cannot object to the legality of the search or to the introduction of the evidence obtained thereby. p. 74.

7.INTOXICATING LIQUORS---Possession---Evidence held Sufficient.---Evidence held sufficient to sustain conviction for unlawful possession of intoxicating liquor. p. 74.

8.INTOXICATING LIQUORS---Fluids Poured Out---Unlawful Search.---Section 36 of the Prohibition Law of 1925(2751 Burns 1926) providing that fluids poured out or destroyed when premises are being searched shall be held to be prima facie intoxicating liquor and intended for unlawful possession and sale refers to a lawful search, and evidence of that character obtained while making an unlawful search has no probative force. p. 74.

9.INTOXICATING LIQUORS---Possession---Sufficient Evidence.---One in possession of intoxicating liquor and exercising control over the same may be found guilty of unlawful possession of intoxicating liquor under 4 of the Prohibition Law of 1925(2717 Burns 1926) although there was no proof of the ownership of such liquor. p. 74.

10.INTOXICATING LIQUORS---Possession---Sufficient Evidence---Attempt to Destroy Liquor.---Where a defendant, in an attempt to outwit the officers of the law, attempted to destroy liquor in his possession, there was such exercise of exclusive and permanent dominion and control over the same as authorized a finding of unlawful possession, regardless of its ownership. p. 75.

From St. Joseph Superior Court; Lewis W. Hammond Judge.

Gentile Speybroeck was convicted of unlawful possession of intoxicating liquor, and he appeals.

Affirmed.

George Sands, for appellant.

Arthur L. Gilliom, Attorney-General, and Edward J. Lennon, Jr., Deputy Attorney-General, for the State.

OPINION

Martin, J.

Appellant and another were indicted in three counts: First, selling; second, possessing, intoxicating liquor; and third, maintaining a common nuisance, under Acts 1925, ch. 48, §§ 4 and 24, §§ 2717, 2740 Burns 1926.The cause was tried by the court, appellant was found guilty on the second and third counts and was sentenced to six months imprisonment and fined $ 500 and costs.

The sheriff and prosecuting attorney, accompanied by a deputy sheriff, armed with a search warrant authorizing a search of "the soft drink parlor of John Doeat 1021 West Sixth Street, Mishawaka, St. Joseph County, Indiana," raided the place of business named.The deputy sheriff testified that he was the first to enter the place, that he immediately ran back twenty-five or thirty feet to the bar and jumped over it; that as he jumped over the bar, the appellant threw an aluminum pitcher and two glasses under the bar into a tank which was ten inches deep and half full of water; that he took the pitcher out of the tank; that it contained moonshine whisky mixed with water; and that it had a fairly good smell of moonshine whisky, with which smell the witness was very familiar.The deputy sheriff also testified that, upon his entrance into the room, he did not witness any violation of the law and that, after he had made the search and obtained the evidence, he then read the search warrant.He testified on cross examination that he did not know before that evening who operated the place but that Van Hoff, Speybroeck's codefendant, told him, when Speybroeck was not present, that Speybroeck operated the place.Appellant denied that he operated the place, and testified that he was employed as a laborer by a contractor and was in the soft drink parlor only as a visitor or customer.Van Hoff and others ran out of the room.Speybroeck was placed under arrest, but later a fight ensued in which Marcel Speybroeck, the defendant's brother, interfered with the officers and the pitcher containing the diluted whisky was "busted" over someone's head.The appellant testified: "I step away, walk away, and beat it, go home."He was later re-arrested.

The appellant assigns as error the overruling of his motion for a new trial.The causes for a new trial relied upon are that the court erred in admitting in evidence the search warrant and the testimony of the deputy sheriff obtained thereunder and that the finding of the trial court is not sustained by sufficient evidence and is contrary to law.Appellant in his brief points out that "whether he was sentenced upon the second or third counts of the indictment is not disclosed by the record."The transcript shows the following: "the court . . . now finds the defendant guilty on the second and third counts of the indictment" and "the court now enters sentence on the defendant Gentile Speybroeck on the finding of guilty heretofore had."

A judgment based on the finding on the third count--maintaining a common nuisance--cannot be sustained.A soft drink parlor is a public place and no search warrant is needed by officers to enter it, but, as the officers did not see any violation of the law, they could not search the place except under a search warrant, and one of the essentials of such a search is that the officer must make known the authority under which he acts.Our search warrant statutes are silent on this point, but the general statute concerning warrants provides that "the officer must inform the defendant that he acts under the authority of a warrant and must show the warrant, if required."§ 2158 Burns 1926.Under a statute punishing as a criminal contempt willful resistance to the lawful order of a court, it has been held that one cannot be convicted of the willful resistance of a search warrant where no papers were shown or read.State v. McGahey(1904), 12 N.D. 535, 97 N.W. 865.The warrant here was neither read nor referred to by the officers until after the search was made.The search was therefore unlawful and, under the rule of law established in this state by Callender v. State(1922), 193 Ind. 91, 138 N.E. 817, and the cases following it, the evidence obtained thereby was not admissible against the owner or manager of the premises.Our conclusion with reference to this count makes it unnecessary to consider further questions presented by appellant with reference to the validity of the search warrant and the sufficiency of the evidence on the nuisance count of the indictment.

A conviction based on a finding of guilty on the second count however, can be sustained.Where an indictment contains two...