159 N.E. 154 | Ind. | 1927
Appellant was convicted of transporting intoxicating liquor (Acts 1925, ch. 48, § 4, § 2717 Burns 1926), and assigns as error upon appeal the overruling of his motion for a new trial.
One of the alleged errors sought to be presented upon *580
appeal is, "The court erred in sustaining the state's demurrer to the plea in abatement filed by the appellant." This is 1-4. the first cause alleged in the motion for a new trial. A plea in abatement must be filed before a plea in bar. As a pleading, it is analogous to a motion to quash, the difference being that the latter is directed to what appears upon the face of the pleading attacked (Williams v. State [1919],
Even though appellant did not present the action of the court in sustaining appellee's demurrer by a separate assignment of error, the action of the court is not presented, because of 5. another reason. The plea in abatement is not set out in appellant's brief, neither is the substance of it. Briles
v. State (1927),
Next, the attempt is made to present the proposition of law in this case that the search warrant, through which the 6, 7. evidence introduced against appellant was procured, was issued on an affidavit based *581 solely upon suspicion, and was therefore of no value. The question presented by this proposition is not before the court for the reason that the brief does not contain the affidavit for the search warrant, the search warrant, or return thereon; neither was there a motion to quash the search warrant nor a motion to suppress evidence because of an invalid search warrant, nor was there any evidence presented during the trial nor objection by appellant for the reason that such evidence was gained wholly and solely by an invalid search warrant, which latter question would be presented by errors predicated upon the admission or exclusion of evidence over objection.
The next proposition is that, "Evidence secured by a search warrant unlawfully procured should not be admitted." This is an abstract proposition of law which is not brought under any 8. assignment of error, which, in the case at bar, is the action of the court overruling appellant's motion for a new trial.
The next proposition is that a search warrant must be executed promptly, that is, within a reasonable time. In this case, the warrant was not executed for six days. This proposition was 9. not directed to the motion for a new trial, which is the only error assigned, and in fact the motion for a new trial mentions no such alleged error.
The next proposition is that a search warrant must describe a place, not a thing. This proposition is not directed to the motion for a new trial, and affidavit for the search warrant and the warrant itself not being in the brief, the court does not know of such defect in the warrant except and unless it be taken for granted by this unrelated proposition of law.
The last proposition is that, "An arrest without warrant must be on probable cause." The brief does not state that this proposition is based upon, or relates to, *582 any of the causes for a new trial. There was no motion to quash the writ of arrest, or other attack made upon the writ. We cannot see that the proposition is in any manner related to any of the causes for a new trial. The proposition does not present a question for review.
We find that the motion for a new trial was properly overruled.
Judgment affirmed.
