Thompson v. State
| Decision Date | 06 July 1929 |
| Docket Number | 13,624 |
| Citation | 167 N.E. 345,89 Ind.App. 555 |
| Parties | THOMPSON v. STATE OF INDIANA |
| Court | Indiana Appellate Court |
From Vanderburgh Circuit Court; Charles P. Bock, Judge.
Guy Thompson was convicted of possession of intoxicating liquor and maintaining a liquor nuisance, and he appealed.
Affirmed.
William D. Hardy, for appellant.
Arthur L. Gilliom, Attorney-General, and Bernard A. Keltner, Deputy Attorney-General, for the State.
Under §§ 4 and 24 of the act of 1925 (Acts 1925 p. 144 §§ 2717 and 2740 Burns 1926), appellant was charged by affidavit in two counts: (1) Unlawful possession of intoxicating liquor; and (2) maintaining a common nuisance. Trial resulted in a conviction on each count.
On appeal, the only error assigned and presented is the action of the court in overruling motion for new trial.
It appears from the uncontradicted evidence that the premises occupied by appellant consisted of a two-story house, the lower story being known and designated as 405, and the upper story as 405 1/2 "South Second street, Evansville, Indiana"; that on March 6, 1926, six police officers armed with two search warrants, one for each story of the building, searched the house, finding therein sixty-six quarts of whisky and two jugs containing alcohol they also found in one of the rooms of the house two men, not members of appellant's household, drinking intoxicating liquor. Notice of the search warrant was duly served before the search was begun, and appellant, who was present while the search was being made, admitted that he occupied all of the building as tenant, and stated to the officers that he did not care so much about the finding of the whisky, but regretted that the officers had found the alcohol; that he would give the officers $ 100 if they would "break the jugs containing alcohol and not take them in the raid"; that, if the alcohol was taken, it "would hurt his business," for people would think that he "was cutting alcohol and coloring it." The record also discloses that the reputation of the place occupied by appellant was bad, as being a place resorted to by persons for the purpose of drinking intoxicating liquor as a beverage.
On the trial, after some evidence had been introduced, the State offered evidence of what was found on the premises of appellant as a result of the search. To this evidence, appellant interposed the objection that the search warrant under which the search was made was invalid. Prior to this objection, no motion to suppress the evidence had been made; and no reason was given by appellant for his failure to present the question before the trial. It may be that appellant reasoned that if he questioned the validity of the search warrant in advance of the trial, and was successful, the State might by the time of the trial be prepared with additional evidence; or he may have thought it good trial tactics to wait till jeopardy attached before he raised the question. Whatever may have been his purpose, he did not in any way question the validity of the search warrant until the trial of his case was in progress, and until it was too late. This court has recently held, in harmony with what is almost the universal rule, that if a defendant, as in this case, knew of the search warrant in ample time to have presented the question as to its validity in advance of the trial, but failed to present the question until the court was in the midst of the trial of the case, he thereby waived any right he may have had to question the validity of the search warrant or to object to the evidence procured thereunder. Hantz v. State (1929), 166 N.E. (Ind. App.) 439.
There is abundant evidence to show that appellant was in unlawful possession of intoxicating liquor and was maintaining a common nuisance as charged respectively in the...
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