State v. Blystone
| Decision Date | 28 June 1928 |
| Docket Number | 24,632 |
| Citation | 162 N.E. 233,200 Ind. 173 |
| Parties | State of Indiana v. Blystone |
| Court | Indiana Supreme Court |
INTOXICATING LIQUORS---Search Warrant---Issuance---Affidavit.---In a prosecution for possessing a still, device and property for the manufacture of intoxicating liquor, in violation of 1 Acts 1923 p. 107, a motion to quash the search warrant issued therein and to suppress the evidence obtained thereby was properly sustained, where the only evidence on which the search warrant was issued was the affidavit of a police officer that he had reason to believe and did believe that defendant had in his possession stills, implements, devices and property for the manufacture of intoxicating liquor with intent to sell the same, as such warrant was issued without probable cause, in violation of 11, Art. 1, State Constitution (63 Burns 1926).
From Clinton Circuit Court; Earl B. Stroup, Judge.
Mark Blystone was charged with possessing a still, device and property for the manufacture of intoxicating liquor with intent to sell the same, was tried and acquitted, and the State of Indiana appeals.
Affirmed.
U. S Lesh, Attorney-General, Paul E. Laymon, Arnet B. Cronk and Carl Wilde, for the State.
On November 13, 1923, appellee, in the court below, was, by indictment, charged with possessing a certain still, device and property for the manufacture of intoxicating liquor, intended for use in violation of the laws of this state. Acts 1923 p. 107, § 1. On February 9, 1924, appellee moved the court to quash the search warrant issued July 30, 1923, and to suppress the evidence obtained thereby, which motion the state unsuccessfully sought to have appellee make more specific. On February 11, 1924, the state's motion to strike out and dismiss appellee's motion to quash and suppress evidence was overruled, and thereupon the state answered by a general denial and by an affirmative answer in bar of the motion to quash. The issue thus joined was submitted to the court for trial and, upon the evidence heard, the court found for appellee, sustained his motion to quash the search warrant, and suppressed the evidence thus obtained. Appellee was then arraigned, and upon his plea of not guilty, the cause was submitted to a jury for trial, and, at the close of the state's evidence, the court instructed the jury to find for the defendant. The jury returned a verdict of not guilty. The state appealed, and in this court relies solely upon the assigned error of the court in sustaining appellee's petition to quash the search warrant and in suppressing the evidence obtained by means of the search warrant.
Appellee has not favored us with a brief, but, from his motion to quash and from appellant's brief, we learn that the question submitted to the court for trial and material to this appeal was: Did the mayor of Frankfort issue the search warrant in question upon a showing of probable cause?
The only evidence introduced tending to show probable cause was the affidavit of a police officer, stating that he had reason to believe and did believe that this appellee had in his possession intoxicating liquor kept with intent to sell, and that he had in his possession stills, implements, devices and property kept for the manufacture of intoxicating liquor intended for use in violation of the laws of the state, and, upon this...
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