McSwain v. State

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 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 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.