Thompson v. State
| Citation | 130 N.E. 412,190 Ind. 363 |
| Decision Date | 31 March 1921 |
| Docket Number | 23,624 |
| Parties | Thompson v. State of Indiana |
| Court | Supreme Court of Indiana |
From Vanderburgh Superior Court; Louis O. Rasch, Special Judge.
Proceeding in the nature of a libel by the State of Indiana against Charles Thompson to condemn and destroy certain intoxicating liquors, etc. From the judgment rendered, the defendant appeals.
Reversed.
Isidor Kahn and W. D. Hardy, for appellant.
Ele Stansbury, Attorney-General, and Remster A. Bingham, for the state.
This was a proceeding in the nature of a libel to condemn and destroy certain intoxicating liquors and vessels of the appellant, seized under what purports to be a warrant of search, and which liquor the state contends was being kept for unlawful purposes.
Appellee caused what purports to be a warrant of search to be issued by the judge pro tem of the superior court of Vanderburgh county, on August 24, 1918. On the same date, by virtue of this writ, the sheriff seized certain intoxicating liquors, and on September 9, 1918, appellee filed in open court the affidavit of one Herman Horne, upon which affidavit said writ had theretofore been issued, and the court then ordered a hearing to determine the purpose for which said liquor was kept, and directed the sheriff to give notice of such hearing.
The appellant appeared specially by counsel for that purpose and filed a verified motion to set aside the service and to quash the process, to wit, the search warrant by virtue of which the intoxicating liquor was seized. This motion was overruled and the defendant excepted, and an answer of general denial was filed.
The cause was tried by the court without a jury upon the general denial; and a request for a special finding of facts was made by the appellant. The court made a written finding of facts and conclusions of law and filed the same on June 18, 1919.
The appellant reserved exceptions to the conclusions of law as stated by the court, and thereupon filed his motion for a new trial. This motion was overruled on June 25, 1919, to which ruling the appellant excepted. The court then rendered judgment upon the special finding of facts and conclusions of law, ordering the destruction forthwith by the sheriff of the property therein described and adjudging costs against the appellant, Thompson.
From such judgment the appellant appealed and assigned as error (1) The overruling of his motion to set aside the service and to quash the writ, to wit, the search warrant issued under date of August 24, 1918; (2) the overruling of his motion for new trial; (3) that the court erred in its conclusions of law upon the special finding of facts.
Appellant's motion for a new trial assigns the following causes: The decision of the court is not sustained by sufficient evidence; and the decision of the court is contrary to law.
The appellant on October 15, 1918, entered his special appearance by counsel for the sole purpose of filing a motion to set aside the service and to quash the process, and then filed said motion, which, omitting the caption, reads as follows "The defendants herein, Charles Thompson, William Vogt and Charles Phelps, each separately and severally moves the court to set aside the service and quash the process towit: the search warrant herein issued under date of 24th day of August, 1918, for the following reasons," and then sets out the reasons for such motion. And one of the reasons so assigned was as follows: "At the time of the issue of said search warrant there was no affidavit upon file and there had been no affidavit in this court, or before the judge thereof, upon which said warrant could be issued."
It is claimed by the appellant that the affidavit must be filed before the search warrant can be issued; that its making without filing is not sufficient to sustain a proceeding to condemn and destroy property, nor to authorize its seizure; and that, without an affidavit first having been filed, the proceedings are irregular, and will not justify the seizure of the property under the search warrant. And for these reasons it is claimed by appellant that his motion to set aside the service and quash the writ should have been sustained.
The attorney-general claims that the phrase "make an affidavit," as used in § 25 of the Prohibition Act , does not mean "execute and file an affidavit," and says by way of argument: ...
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