Tyler v. State , 25957.

• Decision Date: 16 July 1931
• Docket Number: No. 25957.,25957.
• Citation: Tyler v. State , 202 Ind. 559, 177 N.E. 197 (Ind. 1931)
• Parties: TYLER v. STATE.
• Court: Indiana Supreme Court

202 Ind. 559

177 N.E. 197

TYLER

v.STATE.

No. 25957.

Supreme Court of Indiana.

July 16, 1931.

Appeal from Circuit Court, Lawrence County; Marshall Woolery, Special Judge.

Alfred M. Tyler was convicted for the unlawful possession of intoxicating liquor, and he appeals.

Affirmed.

Fred N. Fletcher, of Bedford, for appellant.

James M. Ogden, Atty. Gen., and E. Burke Walker, Deputy Atty. Gen., for the State.

MARTIN, C. J.

This prosecution for the unlawful possession of intoxicating liquor under § 2717 Burns 1926, was begun May 24, 1930, by affidavit in a justice of the peace court which found for the state, and recognized the appellant to the Lawrence circuit court for trial.A change of venue was taken from the trial judge, and a special judge was appointed, who tried the case.The court sustained appellant's motion to quash the affidavit, and an amended affidavit was filed September 18, 1930.The appellant on that date also filed a motion to suppress the evidence, which motion was overruled.He then filed a plea in abatement to which the state filed a demurrer which was sustained.The cause was tried by a jury, and, upon a verdict of guilty, appellant was fined $100, and sentenced to 30 days' imprisonment on the Indiana State Farm.

The errors assigned are based upon the action of the court(1) on the plea in abatement, (2) on the motion to suppress the evidence, (3) on the giving of instruction No. 1, and (4) in overruling appellant's motion for a new trial, wherein it is alleged that (a) the verdict and judgment are not sustained by sufficient evidence and are contrary to law, and (b)the court erred in admitting certain evidence.

[1](1)Appellant's plea in abatement alleges “that on the 8th day of September, 1930, prior to the filing of the affidavit herein the Grand Jury was duly sworn by the jury commissioner *** and by the judge of the Lawrence Circuit Court on the - day of September prior to the filing of the affidavit herein” and “that said Grand Jury so impaneled, charged and sworn *** failed and neglected to indict the said Alfred Tyler for illegal possession of intoxicating liquor on said 24th day of May 1930.”Under § 2150 Burns' 1926, the offense involved here “may be prosecuted in the circuit *** court by affidavit filed in term time, in all cases except when the Grand Jury is in session, or. ***” This plea in abatement does not allege that the grand jury for the September term was in session on September 18, the date when the new affidavit was filed, nor does it allege that the grand jury was in session at the time the original affidavit was filed.It is not sufficient to prevent the prosecution of appellant by the affidavit herein.Lankford v. State(1895)144 Ind. 428, 43 N. E. 444;Hall v. State(1912)178 Ind. 448, 99 N. E. 732;State v. Wilson(1901)156 Ind. 343, 59 N. E. 932.

[2] Moreover, the plea in abatement was filed too late; after voluntary appearance, change of venue, motion to suppress, and motion to quash the affidavit.Moore v. State(1923)196 Ind. 299, 141 N. E. 638.

[3][4](2)The appellant filed a motion to suppress certain evidence obtained by a search, under a search warrant, of the fourth and fifth cabins in a row of cabins in a fishing camp along a river.Such motion did not assert that appellant had or claimed either ownership or possession of such places searched, or of the property seized.On the contrary, the motion recited: “That his cabin was not the fourth cabin described in said purported affidavit and search warrant, nor was his cabin the fifth cabin described in said purported affidavit and search warrant.”(No search was made of the third cabin, of which appellant admitted ownership and in while he lived.)A defendant cannot avail himself of an objection to the legality of the search of premises or property which he does not own, control, or have an interest in, Snedegar v. State(1925)196 Ind. 254, 146 N. E. 849, 147 N. E. 918;Earle v. State(1924)194 Ind. 165, 142 N. E. 405, or of premises or property in which he disclaims ownership, control, or interest.Speybroeck v. State(1926)198 Ind. 683, 154 N. E. 1;Speybroeck v. State(1927)200 Ind. 69, 155 N. E. 817;Walker v. State(1928)200 Ind. 303, 163 N. E. 229;Greer v. State(1929)201 Ind. 386, 168 N. E. 581.

[5][6](3)The appellant, who filed a written request that the court instruct the jury in writing, contends that the court in giving instruction No. 1 erred in reading the affidavit as a part of such instruction; that such reading constituted the instruction an oral and not a written one He sets out the instruction in his brief as follows: “Gentlemen of the jury this is a criminal prosecution by way of affidavit, which omitting the formal parts reads as follows: (-).”He does not contend that the court failed to read the affidavit or did not read it correctly, or that any statement was made to the jury in this instruction which in any way prejudiced his rights.It is unnecessary to decide the technical question...