Dafoff v. State , 198 Ind. 701 ( 1926 )

The appellant was convicted on an indictment charging him with unlawfully transporting intoxicating liquor in an automobile in Marion county, Indiana. He pleaded not guilty and a trial by the court resulted in a finding of guilty and that his age is thirty-one years. Judgment was rendered on the finding, from which judgment the appellant appeals; and the only error properly assigned is that the court erred in overruling appellant's motion for a new trial.

In the motion for a new trial, the appellant says the finding of the court is contrary to law; the finding of the court is not sustained by sufficient evidence and that there was irregularity in the proceedings of the court and order of the court and abuse of discretion by the court, by which the defendant was prevented from having a fair trial in this, to wit: the court overruled the defendant's motion to suppress the evidence of the state in this cause, and to enjoin and restrain the use thereof by the state.

The motion to suppress the evidence alleges, in substance, that the officers of the law violated the constitutional rights of the appellant as guaranteed by Art. 1, § 11 of the Constitution of Indiana, by making an unlawful search and seizure of appellant's automobile, and did unlawfully, contrary to the constitution, obtain certain intoxicating liquor in said automobile of this appellant and that said appellant was placed under arrest unlawfully, and by reason of such unlawful search and seizure. The appellant moved the court to suppress the evidence which he alleges was unlawfully obtained by such search and seizure, and that the prosecuting attorney of Marion county be restrained and enjoined from using said evidence, either the containers or the alleged intoxicating liquor thus so unlawfully obtained and secured, and any and all information relating thereto, and obtained by said officers, and enjoined from disclosing any information obtained by them in the process of said unlawful search and seizure.

It is made to appear by the evidence that appellant was arrested by a deputy sheriff of Marion county, Indiana; that he was arrested about 4:30 in the afternoon; that with the deputy sheriff who arrested him was another deputy sheriff; that the appellant was driving a Ford automobile and another person riding in with him; that the officer arrested this appellant for speeding; that, at the time of the arrest, the officer had no search warrant for this automobile and no warrant for the arrest of the appellant. The evidence further shows that after the appellant was placed under arrest for speeding, the officer then made a search of the car in which he was riding; that the officer found one gallon bottle of mule, one gallon empty bottle and one two-gallon empty jug and one half-pint bottle empty. There was a gallon of liquor there. What you would call white mule whisky. The empty containers in the car had the smell of liquor on them. After his arrest, the appellant made some statements to the officers in regard to the use of the liquor found in the car. The evidence shows affirmatively that the defendant was placed under arrest for speeding before a search of the car was made.

It has been held in this state that officers may search a person lawfully arrested for a misdemeanor committed in their presence, including packages or bags carried and the 1. automobile in which he is riding when arrested, without a violation of his constitutional rights and the facts discovered by such search may be used in evidence against him, upon trial for another offense than that for which he was arrested. Haverstick v. State (1925), 196 Ind. 145,147 N.E. 625.

Following the precedent laid down in Haverstick v. State,supra, it must be held that the search of appellant's automobile, under the facts disclosed by the evidence, 2, 3. was not unlawful, and the facts discovered by such search were admissible against this appellant in a trial upon the indictment charging him with unlawful transportation of intoxicating liquor. It follows that the court did not err in overruling appellant's motion to suppress evidence and the finding of the court is sustained by sufficient evidence.

Judgment affirmed.