Tongut v. State
| Decision Date | 21 April 1926 |
| Docket Number | No. 24550.,24550. |
| Citation | 151 N.E. 427,197 Ind. 539 |
| Parties | TONGUT v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Putnam Circuit Court; Thos. W. Hutchinson, Judge.
Michael Tongut was convicted of possessing a still for use in violation of the Prohibition Law, and he appeals. Reversed, with directions.Willis Hickam, Sr., and Willis Hickam, Jr., both of Spencer, for appellant.
U. S. Lesh, Atty. Gen., for the State.
[1] Appellant was convicted of possessing a still intended for use in violation of the Prohibition Law (Laws 1917, c. 4). 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 search of his premises. The motion was filed on May 28, 1923, and was overruled on the 27th 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.
[2] 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 (Ind. Sup.) 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 v. State, 7 N. E. 203, 106 Ind. 471, 473;Jordan Ditching, etc., Ass'n v. Wagoner, 33 Ind. 50.
[3] 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, Ind.,” 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 72 1/2 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, 87 N. E. 103, 171 Ind. 662, and authorities cited on page 668, 17 Ann. Cas. 228.
[4] Neither do we think the mere fact that the “place” described consists of an entire farm of 72 1/2 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 were 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, 156 N. W. 130, 132 Minn. 260 (block containing 5 acres); State v. Hesse, 191 N. W. 267, 154 Minn. 89 (quarter section); State v. Ditmar, 232 P. 321, 132 Wash. 501 (); Reutlinger v. State (Okl. Cr. App.) 234 P. 224 (ranch containing 2,160 acres); People v. Urban, 199 N. W. 701, 228 Mich. 30 (); Hornig v. Bailey, 50 Conn. 40 (). 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 on an adjoining farm not owned or controlled by appellant, and not described in the search warrant. There was evidence that a lid and coil which fitted upon the “can” taken from appellant's house, and, together with other parts found there, combined to constitute a complete still, were found buried in the leaves 30 or 40 yards or steps (other witnesses said rods) west of appellant's barn, at a place reached by following a path from the barn.
[5] If the place they were found really was on the farm of another (as to which the evidence was conflicting, however), and that other person offered no objection to the search and seizure, and made no objection to the use of the lid and coil as evidence, appellant will not be heard to complain because his neighbor's premises were searched without proper warrant. 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. Keith v. Commonwealth, 247 S. W. 42, 197 Ky. 362;Weber v. Commonwealth, 260 S. W. 1, 202 Ky. 449;Snedegar v. State (Ind. Sup.) 146 N. E. 849, and authorities cited; note, 24 A. L. R. 1425.
[6] And, if appellant, keeping a barrel of “mash” and parts of a still on his own farm, carried other parts of the still over upon his neighbor's land, and buried them in the leaves there, it is only the neighbor, and not the appellant, who can be heard to object in case the place where they were so buried was searched without a proper warrant. The description of the property to be searched for and seized as “stills, implements, and devices intended for use in violation of the laws of this state” was sufficiently specific to authorize the seizure of a copper still with conical top and coil that fitted upon it, if any such still was found.
[7][8] Where a felony is actually in process of 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; and, the possession of such a still as was described in the search warrant being a felony, an affidavit charging that appellant had one in his possession at a designated place was sufficient to authorize the issue of a search warrant, without reference to whether a criminal prosecution against him for that offense had or had not been commenced. Sections 1923, 1924, 1925, 1927, Burns' 1914 (sections 56, 57, 58, 60, c. 169, Acts 1905, pp. 596, 597).
[9] One of the alleged grounds of objection to certain evidence was “that the same (search) warrant had been served once on May 21st, when some of the property was found but none was seized, and again on May 27th, at the time the same articles were found in the same place, and some (elsewhere, which were) *** then seized; that there was no service of the warrant when the property was seized; that the search was then made at a time when the defendant and all his family were absent from home”; and that it was only by means of such latter search that the evidence objected to was obtained. This objection (several times repeated) was overruled, and evidence shown without...
To continue reading
Request your trial