Walker v. State

• Decision Date: 09 January 1924
• Docket Number: No. 24287.,24287.
• Citation: 194 Ind. 402,142 N.E. 16
• Parties: WALKER v. STATE.
• Court: Indiana Supreme Court

194 Ind. 402

142 N.E. 16

WALKER

v.STATE.

No. 24287.^*

Supreme Court of Indiana.

Jan. 9, 1924.

Appeal from Circuit Court, Vanderburgh County; Philip Gould, Judge.

Nora Walker was convicted of possessing, manufacturing, possessing with intent to sell, and possessing a still for the manufacture of, intoxicating liquors, and she appeals. Affirmed.

Wm. D. Hardy, of Evansville, for appellant.

U. S. Lesh, Atty. Gen., Mrs. Edward F. White, Deputy Atty. Gen., and George D. Heilman, of Evansville, for the State.

MYERS, J.

Appellant and another were charged by affidavit and convicted in court below of unlawfully possessing intoxicating liquor, of unlawfully manufacturing intoxicating liquor, of unlawfully possessing intoxicating liquor with intent to sell the same, and of unlawfully possessing a still and device for the manufacture of intoxicating liquor, intended for use in violation of the laws of this state. Appellant prosecutes this appeal for the reversal of a judgment assessing a fine of $200 and imprisonment against her.

The errors assigned call in question the action of the court in overruling appellant's motion to quash the first count of the affidavit, and in overruling her motion for a new trial.

[1] The first count charged the mere possession of intoxicating liquor, and it was error to overrule the motion to quash that count. Ward v. State, 188 Ind. 606, 125 N. E. 397;Reed v. State, 189 Ind. 98, 126 N. E. 6;Crabbs v. State (Ind. Sup.) 139 N. E. 180;Powell v. State (Ind. Sup.) 139 N. E. 670;Reinchild v. State (Ind. Sup.) 139 N. E. 673;Asher v. State (Ind. Sup.) 139 N. E. 674;Dressier v. State, No. 24250, 141 N. E. 801 (this term).

The causes relied on in support of the motion for a new trial are: Error of the court in permitting witnesses, over her objection, to testify concerning what they procured or seized, what they saw and were told while upon the premises of her codefendant; also error in requiring appellant to answer questions on cross–examination pertaining to the alleged removal of a still from her husband's home in March or April before, and whether he had been theretofore convicted of violating the liquor law.

It appears from the evidence that the sheriff of Vanderburgh county, armed with a search warrant issued upon a John Doe affidavit, and three deputies, went to the home of this appellant's codefendant, and acting upon the authority of such warrant, they proceeded to search the premises supposed to be described in the warrant. However, before proceeding with this work, the sheriff read the warrant to the wife of the husband who had possession of the premises, and then, on seeing the husband near the barn, told him that he had a search warrant “for the house,” and asked him if he had a still. He replied that he had, and to the question “Whose still is it?” he said, “It is Walker's,” and to the further question, “What are you doing with it over here?” he said, “I am to get fifty–fifty split; I watch the still, and when Mrs. Walker goes away, I run the still.” The Walker home was across the road and to the southwest, and they were sent for. On their arrival, Mrs. Walker, this appellant, claimed the still as her own, and at the trial testified that the still belonged to her; that she bought it and arranged with Mr. Wesselman, in whose home it was found, to run on a fifty–fifty basis; that she expected to sell the liquor to the man from whom she bought the still, but had not seen him since she purchased it; that she had made 8 gallons of liquor; that her husband was a coal miner, out of work, and in hard luck; and that she had bought the still and made the arrangement spoken of without the knowledge or consent of her husband. It appears from the testimony of the officers making the search that, besides the still, 200 gallons of mash, jugs, and intoxicating liquor were found on the premises.

[2] The affidavit upon which the search warrant was issued was introduced in evidence, but the warrant could not be found, Objections were interposed to all questions calling for answers relating to any matter in which information was obtained by virtue of the search warrant, on the ground that it was obtained upon an insufficient affidavit. If it be conceded that the affidavit was insufficient, and that the search warrant was illegal, still appellant was in no position to claim the immunity the law affords against illegal search and seizure. The evidence proposed to be introduced was not obtained by any of the witnesses by the invasion of her home by virtue of the pretended process in question. It was...