166 N.E. 444 | Ind. Ct. App. | 1929
Lead Opinion
The appellant was charged by affidavit with maintaining a nuisance under the liquor law. The affidavit was filed in the Vanderburgh Circuit Court on May 9, 1927. The appellant entered a plea of not guilty on May 10, 1927, and the case was heard by the court on May 24, 1927. The court found the appellant guilty of maintaining a nuisance as charged and affixed his punishment at a fine of $200 and imprisonment on the Indiana State Farm for a period of sixty days. Appellant presented his motion for a new trial and reasons therefor, based upon the following causes, viz.: (a) The finding of the court is not sustained by sufficient evidence; (b) the finding is contrary to law; (c) errors of law occurring at the trial, in this, to wit: In permitting the officers to testify what was seized by them *594 and what they observed on the premises of the appellant while in the act of executing a search warrant. The error assigned is the overruling of the motion for a new trial.
The evidence is to the effect that the premises of appellant consisted of one large room, the front part being separated from the rear by a partition with a door which was locked by a Yale lock. The front part of the room was used by the appellant as a tin shop, the rear as a place to sleep, eat and "drink." The door in the partition was provided with a peep hole. The officers entered the open door at the front, announced that they were officers, proceeded toward the rear of the room, and again announced that they were officers and had a search warrant for the place and demanded admission.
The rear of the room was occupied by several men, including appellant. One of the men in the rear of the room looked through the peep hole in the partition and saw the officers enter the front door; immediately confusion took place; the police could hear the men pouring a liquid into a receptacle; the officers then forced the door and stopped the appellant and others from destroying the intoxicating liquor and proceeded to read the search warrant to appellant. The appellant had poured the whisky into the sink and was in the act of flushing the sink with lysol. The officers found a whisky glass in the room and whisky bottles near the rear door. The odor of intoxicating liquor was prevalent. Prior to the night of the raid, the officers had watched the premises of appellant and had observed men going in and out of the room searched during the late hours of the night. The reputation of the place was bad as being a place resorted to by men for the purpose of drinking intoxicating liquor.
Appellant did not present to the court, in advance of the trial of his case, a motion to suppress the evidence *595 obtained by the officers by reason of the alleged illegal search. However, the record discloses that appellant had full knowledge of the articles seized at the time of the search and knew what the officers had observed in his room during the raid. Further, appellant was admitted to bail on May 10, 1927, and was represented in court on said day and thereafter by an attorney-at-law.
The appellant, after the trial had begun and while the court was engaged in hearing evidence on the merits, objected to the officers testifying as to what was seized and observed by them at the time of the search for the following reasons: (1) The search warrant under which the officers operated was invalid; (2) the officers entered the premises before making known the fact that they were there as officers for the purpose of making the search.
It was not incumbent upon the court, in the absence of a motion to suppress, under the facts in this case, to pause in the midst of the trial and determine the competency of the evidence 1. offered by the State upon the objection interposed by appellant. Hantz v. State (1929), 166 N.E. (Ind. App.) 439, and the authorities cited in support thereof. The appellant could only prevail in this court on causes "A" and "B" of his motion for a new trial, heretofore referred to, by the elimination from the evidence of what was seized and observed by the officers at the time of the search. This he cannot do, and it necessarily follows the court did not err in overruling the motion for a new trial.
Judgment affirmed. *596
Addendum
PETITION FOR REHEARING.
Appellant attacks the holding of this court in Hantz v.State (1929), 166 N.E. (Ind. App.) 439, and says it establishes a "new doctrine in Indiana," not supported by reason or authority, and, in addition to the two Kentucky cases mentioned in that case, he cites Gildrie v. State (1927),
The doctrine may be new in Indiana, but it was recognized by the Supreme Court of Massachusetts in 1841, as an established rule of evidence in the trial of criminal cases. It has been consistently applied and followed by the Supreme Court of the United States for many years. It has been recognized and followed in almost every state and country where the question has been before an appellate tribunal. The text books, for more than a century, have recognized it as the correct rule. It has been adopted by some of the trial courts of this state as a rule of procedure. It deprives no one of a constitutional right.
In so far as Gore v. State, supra, is concerned, appellant is mistaken when he says the objection to the legality of the search was first made at the trial. The opinion says the defendant, before trial, filed a motion to suppress, that his motion was denied and, on trial, the officers, over his objection, were allowed to testify as to the facts discovered by the search, which was illegal. In discussing the question as to the admissibility of the evidence under the facts in that case, the court, referring to the decisions of the Supreme Court of the United States, said: *597 "If it appears that the highest court of the land has definitely fixed a rule applying to the introduction of evidence obtained by illegal seizure, it follows without argument that the rule of evidence in the state courts, where like facts and principles of law are involved, should conform to that settled by the court having supreme prestige and authority." And, after referring to a former decision of the Supreme Court of Oklahoma, the court said: "Resting on sound principles, and to promote a uniformity of judicial decisions, it would seem that the decisions of this court should be in harmony with the constitutional construction of the issues here involved, as announced by these two courts." Prior opinions of the court in conflict with the holding of the court in the Gore case were overruled. The three cases specifically mentioned as being overruled are cases holding evidence discovered by an illegal search admissible. The court held that evidence procured under an illegal search could not be used in evidence "over timely protest of the accused." The protest there was timely made and the court, in harmony with the rule stated by the Supreme Court of the United States, held the evidence not admissible. The same court, in a later opinion, written by the judge who wrote the opinion in the Gore case, said: "The right to the exclusion of evidence claimed to have been procured by an illegal seizure may be waived, and is waived, where the accused fails to object to its introduction at the first opportunity after he is apprised of the fact that such evidence will be used against him. In this instance, from the very nature of things, the defendant knew from the beginning that the state's case would stand or fall upon this class of evidence alone." Webb v. State (1926), 242 Pac. (Okla. Crim.) 784.
In Gildrie v. State, supra, the court held that evidence obtained by virtue of an illegal search warrant should, *598 on proper objection, be excluded. The court, without so deciding and without referring to the rule now under consideration, assumed the objections were timely made. Nothing is said as to when or how the objections should be made nor was anything said about filing a motion to suppress in advance of the trial.
In Robertson v. State (1927),
In the instant case, as in the Hantz case, the defendant was present when the search was made and knew that the officers, while making the search, had discovered evidence of his 2. guilt, and had taken possession of and seized certain articles of evidence. No steps were taken to suppress the evidence so discovered until after the trial upon the merits was commenced and the State had introduced a part of its evidence. We adhere to the statement that it is a well-settled rule of law that when property has been unlawfully seized or when evidence *599 has been unlawfully procured, a motion for the return of such property or to suppress evidence must be timely made or the right is lost, and that the almost universal rule is that the court will not, after the actual commencement of the trial of a criminal case, pause or delay the trial to determine how the evidence was procured, and will not then entertain a motion for the return of the property illegally seized, or to suppress the evidence, except where knowledge of the possession of such evidence by the State was first learned by the defendant during the introduction of the evidence.
In addition to the authorities cited in the Hantz case, the rule was declared and followed in MacDaniel v. United States
(1928), 24 F.2d 303; Armstrong v. United States (1926), 16 F.2d 62; Id.,
In People v. Marxhausen (1919),
In Cohn v. State (1908),
In Tucker v. State (1922),
The Supreme Court of Missouri recently said: "When evidence is offered and objection that it was obtained by illegal means is then made for the first time, the court will determine only whether the evidence is relevant and competent. It will not pause to determine the collateral question as to how the evidence was obtained." State v. Owens (1924), 302 Mo. 348, 259 S.W. 100, 32 A.L.R. 383.
The Appellate Division of the Supreme Court of New York, inPeople v. Defore (1925),
In Wallace v. State (1927),
In Patterson v. United States (1929), 31 F.2d 737, where no motion to suppress the evidence was made before trial, the court said: "No prior motion having been made for the suppression of the evidence, under the settled rule the motion was made too late to avail the appellant; he having had knowledge of the seizure at the time when it was made."
There is no merit in appellant's contention that he should not have been required to anticipate that the State would attempt to introduce evidence as to what was discovered at the time of 3. the search. He was present when the search was made and knew the officers had thereby ascertained facts sufficient to convict him of a violation of the Prohibition Law. He knew the officers had seized certain items of evidence. He was placed under arrest at the time of the search, and had every reason to believe that the officers making the search would be called as witnesses to testify as to what they saw at that time. An affidavit charging him with maintaining a nuisance, a place where intoxicating liquors were unlawfully kept, *604
sworn to by one of the officers making the search, was filed in the circuit court two days later. The only witnesses whose names were indorsed on the affidavit were the officers who made the search. He had every reason to know that the State was relying on and would probably introduce the evidence disclosed by the search. State v. Wansgaard, supra; State v. McDaniels
(1925),
The rule in question is a wholesome one, and does not deprive a defendant of any constitutional right. It promotes orderly procedure, and courts should not be oversentimental in 4. dealing with a defendant who has been convicted of violating a law enacted for the protection of society. There is greater need to protect the people from the criminal, than there is to protect the criminal from the people.
We again call attention to the last expression of the Supreme Court of the United States upon the question, found in Cogen v.United States (1929),
Rehearing denied.