Speybroeck v. State
| Decision Date | 08 April 1927 |
| Docket Number | No. 25215.,25215. |
| Citation | 200 Ind. 69,155 N.E. 817 |
| Parties | SPEYBROECK v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, St. Joseph County; Lewis W. Hammond, Judge.
Gentile Speybroeck was convicted of possessing intoxicating liquor and maintaining a common nuisance, and he appeals. Affirmed.
George Sands, of South Bend, for appellant.
Arthur L. Gilliom, Atty. Gen., and Edward J. Lennon, Jr., Deputy Atty. Gen., for the State.
Appellant and another were indicted in three counts: First, selling, second, possessing, intoxicating liquor; and, third, maintaining a common nuisance, under sections 4 and 24, c. 48, Acts 1925 (sections 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 Doe at 1021 West Sixth street, Mishawaka, St. Joseph county, Ind.,” raided the place of business named. The deputy sheriff testified that he was the first to enter the place; that he immediately ran back 25 or 30 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 10 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 some one's head. The appellant testified: “I step away, walk away, and beat it, go home.” He was later rearrested.
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.”
[1][2][3] 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.” Section 2158, Burns' R. S. 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 et al., 12 N. D. 535, 97 N. W. 865, 1 Ann. Cas. 650. 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.
[4][5] A conviction based on a finding of guilty on the second count, however, can be sustained. Where an indictment contains two counts, one good, the other bad, a general verdict thereon is presumed to be upon the good count (Stucker v. State, 171 Ind. 441, 84 N. E. 971;Barksdale v. State, 189 Ind. 170, 125 N. E. 515;James v. State, 190 Ind. 629, 130 N. E. 115;Walker v. State, 194 Ind. 402, 406, 142 N. E. 16;Wallace v. State, ...
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