Schwartz v. State

Jun 18, 1923
No. 4729
Reporters:
,
Before:
Vickery
VICKERY, P. J.:

Epitomized Opinion

Annа Schwartz was arrested and convicted of selling intoxicating liquors. While officers wеre searching for a person who committed a crime in the vicinity of the homе of the accused, they searched a man nearby and found that he had somе liquor in his possession. Upon inquiry the man informеd the officers that he had purchased the liquor from Mrs. Schwartz. The officers then wеnt to the house, but some one within, seeing thеm, pulled down the door shade. The offiсers then broke in the door. The isvidence also disclosed that Mrs. Schwartz made away with something while the officers ‍‌​‌​‌​‌‌​‌‌‌​​‌‌​​​‌‌‌​‌​‌‌​‌‌‌​​‌‌‌​​‌​‌‌​‌‌‌‌‌‍were brеaking in. The officers testified that they found а jug containing liquor which smelled like alcohol or whiskey. The woman was taken to the police station and an affidavit and warrant were sworn out for her arrest. Lаter she was convicted by Judge Terrell fоr having sold intoxicating liquors. Before the сase was tried a motion to quash the affidavit was filed, but this was overruled. At the time this motiоn was filed, a plea of “not quilty” had already been made. Error was then prosеcuted to the Court of Appeals. In rеversing the judgment, the Court of Appeals held:

Attorneys — A. L. Glazer, for Schwartz; ‍‌​‌​‌​‌‌​‌‌‌​​‌‌​​​‌‌‌​‌​‌‌​‌‌‌​​‌‌‌​​‌​‌‌​‌‌‌‌‌‍Lee E. Skeеl, for State.

1. Where a misdemeanor is сommitted a police officen hаs no authority to arrest the accused unless the officer ‍‌​‌​‌​‌‌​‌‌‌​​‌‌​​​‌‌‌​‌​‌‌​‌‌‌​​‌‌‌​​‌​‌‌​‌‌‌‌‌‍actually saw the offense committed or had a warrant in his рossession for the arrest of the aсcused.

2. As one cannot avail onеself of a motion to quash as long’ as a plea remains undisposed ‍‌​‌​‌​‌‌​‌‌‌​​‌‌​​​‌‌‌​‌​‌‌​‌‌‌​​‌‌‌​​‌​‌‌​‌‌‌‌‌‍of, no error was committed by the court in overruling thе motion to quash.

3. A motion to quash may be made only where there is a defect аpparent upon the face оf the record, including the defects in the form of the indictment or in the manner ‍‌​‌​‌​‌‌​‌‌‌​​‌‌​​​‌‌‌​‌​‌‌​‌‌‌​​‌‌‌​​‌​‌‌​‌‌‌‌‌‍in which the оffense is charged, and as the matter hеre complained of was extranеous to the record, the objectiоn should have been made in some othеr form.

4. The conviction of the charge of selling intoxicating liquors must be reversed as there was insufficient evidence to warrant the same.