Tongut v. State
| Decision Date | 21 April 1926 |
| Docket Number | 24,550 |
| Citation | 151 N.E. 427,197 Ind. 539 |
| Parties | Tongut v. State of Indiana |
| Court | Indiana Supreme Court |
1. CRIMINAL LAW.---Refusal of trial court to set aside order overruling motion to suppress evidence, in order that jurat to affidavit verifying the motion might be corrected, was not abuse of its discretion when defective affidavit had been on file from May until following September.---The refusal of the trial court to set aside an order overruling a motion to suppress evidence, in order that the jurat to the affidavit verifying the motion might be corrected, the ruling being based on a defect in said jurat, was not an abuse of its discretion where the affidavit had been on file from May until the following September. p. 541.
2. SEARCHES AND SEIZURES.---Affidavit for search warrant in the form prescribed by statute (2086 Burns 1926, 1924 Burns 1914) is sufficient.---An affidavit for a search warrant in the form prescribed by statute (2086 Burns 1926, 1924 Burns 1914), that affiant "believes and has good cause to believe," etc., is sufficient. p. 542.
3. SEARCHES AND SEIZURES.---Description of real estate to be searched, which includes well-known abbreviations, held sufficient.---A description of the real estate to be searched, which includes well-known abbreviations, such as "sec." for section, "Tp." for township "E. 1/2 N.E. 1/4" for the "east half of the northeast quarter," is sufficient in the affidavit for a search warrant and in the warrant. p. 542.
4. SEARCHES AND SEIZURES.---Description of place to be searched by section, township and range, together with the name of the farm, held sufficient.---A description of the place to be searched as "the Coble Farm, in section 17, township 12 range 4, being 72.5 acres in the east half of the northeast quarter in Cloverdale township," held sufficient in the affidavit and the search warrant. p. 542.
5. SEARCHES AND SEIZURES.---Description in affidavit of place to be searched as an entire farm of seventy-two and one-half acres was not too indefinite.---A description in the affidavit of the place to be searched as an entire farm of seventy-two and one-half acres was not too indefinite where there was no intimation that the farm consisted of more than one tract or that any part of it was not occupied or controlled by the party named as the occupant. p. 543.
6. SEARCHES AND SEIZURES.---Immunity from unreasonable search is a personal privilege, and party cannot successfully object to search of another's premises unless his own privacy is invaded.---Immunity from unreasonable search is a personal privilege, and a party cannot successfully object to a search of the premises of another so long as it does not unlawfully invade his own privacy. p. 543.
7. SEARCHES AND SEIZURES.---Accused cannot complain that parts of still found on adjoining farm, which was searched without a search warrant, were improperly introduced in evidence as only the owner or occupant thereof could object to such search.---One accused of having possession of a still for the manufacture of intoxicating liquor cannot complain that parts of a still found in a search without a warrant of an adjoining farm was improperly introduced in evidence, as the owner or occupant of such farm is the only one that can object to such search. p. 543.
8. SEARCHES AND SEIZURES.---Search warrant may issue to find and seize instruments used in commission of a felony before prosecution is commenced against guilty party.---Where a felony is actually being committed, it is not necessary that the guilty party be identified and a prosecution commenced against him before a search warrant may issue to find and seize the instruments that are being used in its commission p. 545.
9. INTOXICATING LIQUORS.---Search warrant may be issued for still used in manufacture of intoxicating liquor though no prosecution has been commenced for having possession of the same.---A search warrant may be issued for a still that is being used in the manufacture of intoxicating liquor although no prosecution for having possession of such still has been commenced. p. 545.
10. INTOXICATING LIQUORS.---Evidence of finding still and "mash" on second search of defendant's premises under same warrant held incompetent where first search had been completed, although no return of such warrant had been made.---In a prosecution for having possession of a still for the manufacture of intoxicating liquor, evidence of finding still and "mash" on a second search of the defendant's premises under the same warrant was incompetent, where the first search had been completed, although no return of the search warrant had been made. p. 546.
From Putnam Circuit Court; Thomas W. Hutchinson, Special Judge.
Michael Tongut was convicted of possessing a still for the manufacture of intoxicating liquor, and he appeals.
Reversed.
Willis Hickam, Sr., and Willis Hickam, Jr., for appellant.
U. S. Lesh, Attorney-General, Arnet B. Cronk and Carl Wilde, for the State.
Appellant was convicted of possessing a still intended for use in violation of the prohibition law. Overruling his motion for a new trial is assigned as error. By a motion made before the jury was sworn, appellant sought to suppress certain evidence that had been obtained by an alleged illegal search of his premises. The motion was filed on May 28, 1923, and was overruled on the twenty-seventh of the following September, for the reason, among others, that the clerk of the court before whom appellant claims to have made oath to the facts on which the motion was based, after the words "subscribed and sworn to" which appeared at the bottom of the page in the form of affidavit used, had merely written "attest" and signed his name, with the designation "clerk," instead of attaching a formal jurat and affixing the seal of the court. After the ruling had been made appellant moved to set it aside, and for leave to amend the jurat, claiming inadvertence and surprise. But since the affidavit thus imperfectly certified had been on file from May until September before the motion was ruled on, we do not think the trial court abused its discretion in refusing to set aside the ruling in order that the jurat might be corrected.
By proper objections to the evidence introduced and exceptions to the rulings by which it was admitted, appellant has challenged the legality of a search made by the sheriff under authority of a search warrant, the validity of which is also attacked. It is first objected that the search warrant was invalid because, it is asserted, the affidavit filed with the mayor of Greencastle on which the search warrant issued was insufficient, as matter of pleading, to authorize its issuance by reason of being drawn in the form prescribed by statute. The objection is not well taken. Snedegar v. State (1926), 198 Ind. 182, 150 N.E. 367.
Appellant also complains that the place to be searched was not sufficiently described in the affidavit and search warrant. In describing the real estate the warrant employed abbreviations in common use, the meaning of which is within the judicial knowledge of the court. Frazer, Trustee, v. State (1886), 106 Ind. 471, 473, 7 N.E. 203; Jordan Ditching, etc., Assn. v. Wagoner (1870), 33 Ind. 50. Making use of such abbreviations in setting out the description, the affidavit charged that appellant had in his possession (among other things) stills, implements, devices and property kept for the purpose of manufacturing intoxicating liquor intended for use in violation of law, "on what is known as the Coble farm, in section 17, township 12, range 4 (being) 72.5 acres in the east half of the northeast quarter in Cloverdale township of Putnam of said county and state," and the warrant directed a search to be made of the place thus described. This description clearly pointed out and sufficiently designated the particular tract of seventy-two and one-half acres intended. It would be sufficient in a deed to convey that specific parcel of real estate, which is the test of certainty proposed by some authorities. Rose v. State (1909), 171 Ind. 662, 87 N.E. 103, 17 Ann. Cas. 228, and authorities cited on page 668.
Neither do we think the mere fact that the "place" described consists of an entire farm of seventy-two and one-half acres makes the description too indefinite. It was affirmatively charged that the tract constitutes a single farm, and that whatever stills and other devices for violating the law were thereon in the possession of appellant. Many warrants authorizing the search of a tract of land held in a body by a single occupant have been held valid. McSherry v. Heimer (1916), 132 Minn. 260, 156 N.W. 130 (); State v. Hesse (1922), 154 Minn. 89, 191 N.W. 267 (quarter section); State v. Ditmar (1925), 132 Wash. 501, 232 P. 321 (); Reutlinger v. State (1925), 234 P. 224 (ranch containing 2,160 acres); People v. Urban (1924), 228 Mich. 30, 199 N.W. 701 (); Hornig v. Bailey (1882), 50 Conn. 40 (a wooden building at a certain location, occupied by H. and garden attached thereto, and occupied as a place of public resort). And there is no intimation in the record that the "Coble farm" described in the affidavit and search warrant consisted of more than one tract, or that any part of it was not occupied and controlled by appellant. The description was not insufficient.
It is next insisted that part of the apparatus alleged to have been kept for the purpose of distilling whisky, which was found and seized by the officers, was discovered...
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