158 N.E. 902 | Ind. | 1927
An indictment found by the grand jury of St. Joseph county charged the appellant with unlawfully and feloniously transporting intoxicating liquor in an automobile, in violation of § 7, ch. 48, Acts 1925 p. 146, § 2720 Burns 1926. After waiving his right to trial by a jury, he was tried by the court. The court found that he was guilty as charged. The overruling of his motion for a new trial is the only error assigned, which is presented.
He waived arraignment and pleaded not guilty. He later asked leave to withdraw his plea, which was granted. He then filed a motion to quash the indictment, which was overruled. The 1-4. record does not show that a plea was thereafter entered. The record contains the following statement: "Comes *548
now the State of Indiana by Harry S. Taylor, Prosecuting Attorney, and comes also the defendant herein, and this cause being at issue, is submitted to the court for trial." It is the contention of appellant that as it is not shown by the record that appellant entered a plea, after the ruling on the motion to quash, the cause was not at issue when tried. The plea forms the issue to be tried, without which there is nothing before the court or jury for trial. Andrews v. State (1925),
It is claimed by appellant that there was error in the admission of evidence, which he contends was procured by an unlawful search and seizure. The testimony of a deputy 5-8. sheriff of St. Joseph county, who was the only witness, shows that he was informed that appellant was transporting intoxicating liquor to South Bend from a place about ten miles northeast thereof. Acting upon that information, the officer went to the place described to him, on the night of September 10, 1925, where he saw the appellant load a keg into an automobile, and followed him into the city, where he stopped him and asked him about the light on the rear of his automobile, which light was not burning. Appellant was then committing a misdemeanor, as he was violating the law in regard to the regulation of motor vehicles. The officer saw a keg which was in plain view in appellant's automobile and asked him what it contained. The appellant said he had whisky. The officer immediately placed him under arrest and then seized the keg and its contents. The officer did not have a search warrant or a warrant for his arrest. A peace officer may arrest without a warrant when he has reasonable and probable cause for believing that a felony is being or has been committed by the person arrested. Harness v. Steele (1902),
Objection was made by appellant to the introduction in evidence of a keg of "moonshine whisky" taken from his automobile. The reason stated in the record for objecting is not the reason 9. set forth in appellant's brief. The latter reason cannot be considered. The keg and its contents were taken from appellant by virtue of a lawful seizure, and same constituted competent evidence.
The sufficiency of the evidence is questioned by appellant. As the cause must be remanded for a new trial, the evidence 10. will not be reviewed.
The judgment is reversed, with directions to sustain appellant's motion for a new trial.