165 N.E. 755 | Ind. | 1929
The appellant was found guilty of the unlawful possession, control and use of a still and distilling apparatus for the unlawful manufacture of intoxicating liquor, in violation of Acts 1925, ch. 48, § 6, § 2719 Burns 1926. Judgment of fine of $100 and costs and imprisonment at the Indiana Reformatory for a period of not less than one year nor more than five years was entered upon the finding. He has assigned as error that the court erred in overruling his motion for a new trial.
A verified motion to suppress the evidence was filed, which the court, after hearing evidence, overruled. Error is also claimed because of the admission of certain evidence during the trial. The question of the competency of the evidence depends upon the validity and legality of the affidavit and the search warrant issued thereon.
It is contended by the appellant, in the motion to suppress evidence, that the search warrant was issued without probable cause being shown. Part of the affidavit is as follows: 1. "Comes now the undersigned affiant, who upon his oath says: I am a police officer of the city of Evansville assigned to the duty of investigating violations of the prohibition law and have investigated complaints made in regards to the below-named house Aug. 29th, '27. The smell of corn mash fermenting can very easily be distinguished from *191 the other odors, and this odor seems to come from the below-described house. This house has the reputation of being a place where intoxicating liquor is manufactured and possessed and where men resort for the purpose of drinking intoxicating liquor. That because of the above fact he has reasonable cause to believe, and does believe that John Doe, whose lawful name is unknown to the affiant, has in his possession intoxicating liquor; . . . and has in his possession stills, implements, devices and property kept for the manufacture of intoxicating liquors," etc. In the search warrant issued by the justice of the peace, after the copy of the affidavit, the following appears: "And whereas, from oral evidence heard by me after said affidavit was filed, I have found that probable cause exists for believing that the things described in said affidavit are being concealed in or about the premises therein described and are being there kept unlawfully and in relation to the offense named in said affidavit." On the hearing to suppress evidence, a police officer of the city of Evansville testified that, before the search warrant was issued, he had testified before the justice of the peace concerning his visit to the premises to get a description of same. He said he had visited those premises and that he had detected the odor of corn mash, and stated the name of the man that gave information that a still was there. It appears from the affidavit and the evidence produced before the justice of the peace that there was probable cause for the issuance of the search warrant.
One of the causes assigned for the suppression of evidence was that no affidavit for a search warrant had been filed at the time same was issued particularly describing the place to be searched and the things to be seized. The evidence of two witnesses showed that the affidavit had been marked "filed" and had been deposited with the justice of the peace and that he had possession of it *192 when the search warrant was issued. There is evidence that, after the search warrant was delivered to the police officer, the affidavit was taken away from the office of the justice of the peace by the police officer. The reason for this was that similar affidavits had disappeared from the office of the justice of the peace.
In Engleman v. State (1850),
The affidavit contained the following description of the premises searched: "A one story frame house occupied by living and sleeping rooms and all out buildings appurtenant 4. thereto, this said house is known and designated as number 126 Gilbert Ave. in the city of Evansville, Vanderburgh County, Indiana." This *194 description was sufficient. Defendant's motion to suppress evidence was properly overruled.
The testimony to which objection was made, based upon the search and exhibits introduced by the State which were different parts of a still, some corn mash, and a record book 5. containing notations about liquor, all discovered on defendant's premises by means of the search warrant, constituted competent evidence.
The finding of the court was sustained by conclusive and uncontradicted evidence, and the finding was not contrary to law. It was not error to overrule the motion for a new trial.
The judgment is affirmed.