Wallace v. State

Decision Date30 June 1927
Docket NumberNo. 25177.,25177.
Citation157 N.E. 657,199 Ind. 317
PartiesWALLACE v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Henry Circuit Court, John W. Craig, Special Judge.

James Wallace was convicted for possession, control, and use of a certain still and distilling apparatus for unlawful manufacture of intoxicating liquor, and he appeals. Reversed and remanded, with directions.

Paul Brown, of Newcastle, and John F. Robbins, of Indianapolis, for appellant.

Arthur L. Gilliom, Atty. Gen., and Edward J. Lennon, Asst. Atty. Gen., for the State.

TRAVIS, C. J.

One alleged error is presented to sustain this appeal, based upon the action of the trial court overruling appellant's verified motion to quash the search warrant, the return of the officer of the service of the search warrant, and the affidavit upon which the search warrant is predicated. Appellant is charged by an affidavit approved by the prosecuting attorney, in one count, with the unlawful and felonious possession and control and use of a certain still and distilling apparatus for the unlawful manufacture of intoxicating liquor. Acts 1925, c. 48, § 6 (Burns' 1926, § 2719).

Before arraignment, appellant filed his verified motion to quash the search warrant, the return thereon, and the affidavit for the search warrant, and that all evidence of the finding and seizure of any alleged intoxicating liquor or any still or distilling apparatus, or mash, or any property whatever, be suppressed, and not be permitted to be used by the state against the defendant, and that the testimony of the officers who served the search warrant, or who were present when such warrant was served, and each of them, with respect to what they, or any of them, observed, heard, learned, or did while making said search and seizure, be suppressed, and that none of such facts or information thus obtained be permitted to be introduced in evidence by the state against the defendant in said cause. The state answered appellant's verified motion to quash the writ for the search by general denial. The issue thus formed was submitted to the court, and evidence was introduced both in support of the verified motion and the general denial. The court overruled appellant's verified motion to quash the writ of search warrant, and thereafter appellant pleaded not guilty to the affidavit which charged the offense, and the matter was submitted to the court, trial had, which resulted in a finding by the court of guilty as charged, and the court rendered judgment against him by fine of $100 and imprisonment in the Indiana State Prison for a period not less than one year and not more than five years.

The affidavit for the search warrant was sworn to before the prosecuting attorney, and by the prosecuting attorney filed with the justice of the peace, who issued the search warrant. The affidavit, search warrant, and return thereon by the officer is in words as follows:

State of Indiana, County of Henry—ss:

Comes now the undersigned affiant, who upon his oath says: That affiant has reason to believe and does believe that James Wallace has in his possession intoxicating liquor, being then and there sold, bartered and given away as beverage in violation of the laws of this state, and has in his possession stills, implements, devices and property kept for the purpose of the manufacture of intoxicating liquors, intended for use in violation of the laws of this state, at the following premises: The rooms and basement and outbuildings appurtenant thereto, used as a candy parlor and bakery, located at No. 1430 Broad street, in the city of Newcastle, of said county and state. Jake Lowe.

Subscribed and sworn to before me this 1st day of December, 1925.

George R. Jeffrey, Prosecuting Attorney.

Search Warrant.

State of Indiana, County of Henry—ss:

To the Sheriff of Henry County, or any Constable of Said County, or to the Chief of Police and Any Member of the Police Force of the City of Newcastle, Indiana—Greeting:

Whereas, there has been filed with me an affidavit of which the following is a copy, to wit:

State of Indiana, County of Henry—ss:

Comes now the undersigned affiant, who upon his oath says: That affiant has reason to believe and does believe that James Wallace has in his possession intoxicating liquor, being then and there sold, bartered and given away as a beverage in violation of the laws of this state, and has in his possession stills, implements, devices and property kept for the purpose of the manufacture of intoxicating liquors, intended for use in violation of the laws of this state, at the following premises: The rooms and basement and outbuildings appurtenant thereto, used as a candy parlor and bakery, located at No. 1430 Broad street, in the city of Newcastle, of said county and state. Jake Lowe.

Subscribed and sworn to before me this 1st day of December, 1925.

George R. Jeffrey, Prosecuting Attorney.'

You are therefore commanded, in the name of the state of Indiana, with the necessary and proper assistance, in the daytime or in the nighttime, to enter into the premises described in said affidavit and there diligently search for the said intoxicating liquors and said stills, devices and property kept for the purpose of manufacturing intoxicating liquors, as aforesaid, and that you bring the same or any part thereof found on such search, together with the vessels in which such intoxicating liquors are contained, and all the implements, fixtures, devices and property used or kept for such illegal selling, bartering, giving away or manufacture of such intoxicating liquors, and all books, papers, bills, documents and letters relating to such liquors, implements, devices and supplies, and manufacture of such liquors forthwith before me, at my office, to be disposed of according to law.

Given under my hand and seal of the court this — day of December, 1925.

Charles R. Swain, Justice of the Peace.

Return.

This writ came to hand this 1st day of December, 1925, and I served the same upon the said James Wallace by and by entering upon the premises herein described and there making diligent search for intoxicating liquor, and for stills and implements intended to be used in the unlawful manufacture of intoxicating liquor, as described herein; and by virtue of this writ seized the following, viz.: One still and distilling apparatus, 90 gallons of mash, and 18 gallons of intoxicating liquor—and now have and hold the same subject to the further order of the court.

Charles Zornes, Officer Serving Warrant.”

Appellant's verified motion to quash the search warrant alleges:

“That thereupon [upon the delivery of the affidavit for the search warrant to the justice of the peace] at once upon so receiving said affidavit so made, and without further legal proceeding or proof to show probable cause, and without any hearing had or any evidence heard, and solely by virtue of said alleged affidavit, *** such justice of the peace proceeded to and did at once on said day issue, on said alleged affidavit, and alleged search warrant,” directed to an officer, commanding him to search the premises described in said alleged affidavit upon which the search warrant was issued for intoxicating liquors, stills, devices, and property so alleged to be kept for the purpose of manufacturing liquors.

Upon the issue formed by the state's answer in general denial to appellant's verified motion to quash and suppress, the state, to support the search warrant, presented the evidence by the testimony of the policeman who made the affidavit for the search warrant. The affidavit was presented to him for signature by the prosecuting attorney, who, immediately after the officer signed it and took the oath before the prosecuting attorney, turned the affidavit over to the prosecuting attorney, all of which occurred at his desk at police headquarters, and that he, the policeman, could not say that the defendant had a still, but that a short time before that day he had walked past defendant's bakery and smelled an odor which he described as like the odor coming from “swill.” The justice of the peace, as a witness at the hearing upon appellant's verified motion to quash the writ for service, testified that the affidavit for the writ was presented to him by the prosecuting attorney, and that after it was so presented to him he issued a search warrant based upon it, and after placing the affidavit on file and issuing a search warrant he delivered the search warrant to the prosecuting attorney, and that he did not know what the prosecuting attorney did with it; but after a few days the search warrant was returned to him, and had the return of the officer upon it, and it had been in his possession ever since.

The appellant presented to the trial court a memorandum, which was a part of his verified motion to quash the search warrant, giving the reason in support of his said verified motion. The reasons of importance here are:

A. (5) “That said affidavit contained no showing of probable cause for believing that the defendant unlawfully possessed intoxicating liquors, or stills, implements, devices, or property kept for the purpose of manufacturing intoxicating liquors, intended for use in violation of the laws of the state.”

B. (6) “That said affidavit did not state or allege any grounds or facts upon which the alleged belief of the affiant therein was based.”

C. (7) “No evidence or facts are shown or alleged in said affidavit for search warrant on which the belief of the affiant therein was based, nor any facts alleged therein which show probable cause, for the issuance of said search warrant.”

D. (8) “That said affidavit does not state facts sufficient to show probable cause for the issuance of said search warrant as the law in such cases requires.”

E. (9) “That said search warrant was issued without probable cause for the issuance thereof under the law.”

F. (10) “That no statement of facts or alleged facts under oath or affirmation either written or...

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