Todd v. State

• Decision Date: 05 November 1954
• Docket Number: No. 29128,29128
• Citation: 122 N.E.2d 343,233 Ind. 594
• Parties: Shirley TODD, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 343

122 N.E.2d 343

233 Ind. 594

Shirley TODD, Appellant, v. STATE of Indiana, Appellee.

No. 29128.

Supreme Court of Indiana.

Nov. 5, 1954.

James D. Lopp, and John D. Clouse, Evansville, for appellant.

Edwin K. Steers, Atty. Gen. of Indiana, Owen S. Boling and Richard M. Givan, Deputy Attys. Gen., for appellee.

EMMERT, Judge.

This is an appeal from a judgment on a verdict finding appellant guilty of keeping a gaming house as charged in an affidavit, for which he was fined in the sum of $500 and sentenced to the Indiana State Farm for a term of 90 days. The error assigned here is the overruling of appellant's motion for a new trial.

No objection was made to any of the nine written instructions given by the court on its own motion. Appellant requested the court to give to the jury 29 instructions, of which the court gave instructions 2, 3, 8, 10, 16, 18, 22 and 27. Appellant's brief in the section on argument does not question the refusal of the court to give certain of his requested instructions, and as to these no error is presented here. Rule 2-17. The jury was fully and completely instructed on the issues to be tried, and there was no error in refusing other of appellant's requested instructions which were substantially covered by other instructions given the jury. Peltz v. State, Ind.1953, 112 N.E.2d 853; Mandich v. State, 1946, 224 Ind. 209, 215, 66 N.E.2d 69; Kempa v. State, 1945, 223 Ind. 120, 123, 58 N.E.2d 934. It is not necessary to discuss other instructions which were refused, but it is sufficient to note they were inaccurate, did not state the law, or were otherwise improper.

There is no merit in appellant's contention the verdict of the jury was not sustained by sufficient evidence and was contrary to law. Since the judgment must be reversed for other error, we do not deem it necessary to recite the evidence, and in our opinion there was ample evidence upon which to sustain the verdict of guilty.

The serious issue presented by this appeal concerns the testimony of Rex Dendinger, a member of the State Police force, who, over proper objection, was permitted to testify as to what he saw just before a deputy sheriff, having a search warrant, came into the gaming room.

Before the trial the circuit court quashed a search warrant for the premises, and it ordered 'that any evidence of any nature secured by any person by virtue of said search under the pretended authority of said search warrant be suppressed and not be used against the defendant, Shirley Todd.' The State does not contest the validity of this order, and it must be assumed by us that the search by virtue of the warrant was illegal and in violation of appellant's constitutional rights. When a search is illegal, oral evidence of what was found or seen is incompetent against the accused. Dalton v. State, 1952, 230 Ind. 626, 105 N.E.2d 509, 31 A.L.R.2d 1071; Boyd v. United States, 1885, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Weeks v. United States, 1913, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann.Cas. 1915C, 1177; Silverthorne Lumber Co. v. United States, 1919, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319; Flum v. State, 1923, 193 Ind. 585, 590, 141 N.E. 353.

The search warrant was directed 'To...