Filed April 5, 1929. Rehearing denied June 26, 1929.
1. CRIMINAL LAW — Invalid Search Warrant — Motion to Suppress Evidence Obtained by — Should have been Sustained. — Where defendant, before arraignment and plea thereto, filed his verified motion to quash the search warrant whereby the evidence against him was obtained and for the suppression of such evidence because the affidavit upon which the search warrant issued was made on information and belief and without hearing any evidence in support of the affidavit, should have been granted, in the absence of an attack thereon by motion, demurrer or answer. p. 236.
2. SEARCHES AND SEIZURES — Invitation to Search. — Statements by defendant to officers to the effect that he had a still then in operation, and giving its location, made when he was confronted by said officers and notified that they had a warrant for the search of his premises, did not constitute an invitation to search the premises ( Meno v. State, 197 Ind. 16, distinguished). p. 238.
3. ARREST — Cause for Arrest Without Warrant — Competency of Arresting Officers as Witnesses. — Defendant's admission to police officers that he then had a still in operation manufacturing intoxicating liquor, supplemented by the fact that he then led the officers to the location of the still, claimed ownership thereof and of the ingredients in use in the distillation, made it the duty of the officers to arrest him without a warrant, and they could testify as to his admission and to his subsequent acts in leading them to the still and the exhibition thereof in operation, including his claim of ownership. p. 238.
4. CRIMINAL LAW — Defendant's Confession of Guilt of Felony — Competency of Witnesses — Information Subsequently Obtained Without Warrant. — After police officers informed defendant that they had a warrant to search his premises, he told them he had a still in operation manufacturing intoxicating liquor and led them to the building in which the still and ingredients for distillation were located, unlocked the door and exhibited to them the still in operation, together with the ingredients for making such liquor, at the same time, claiming to be the owner thereof. This being a felony, it was competent for the officers to testify to the fact of defendant's admission that he was then engaged in the commission of a felony, and as to what they learned from him thereafter, notwithstanding the fact that the search warrant was defective. p. 238.
5. INTOXICATING LIQUORS — Possession and Use of Still — Evidence Held Sufficient. — Evidence held sufficient to sustain a verdict finding defendant guilty of the offense of possessing, controlling and using a still for the manufacture of intoxicating liquor as defined by Acts 1923, ch. 33, § 1. p. 238.
6. INTOXICATING LIQUORS — Possession and Use of Still — Objection to Instruction. — In a prosecution for unlawfully possessing and using a still for the manufacture of intoxicating liquor, an objection to an instruction on the ground that it was based on the hypothesis that mere possession of a still for the manufacture of intoxicating liquor was an offense was without merit where the instruction extended to the use of a still as well as to its possession. p. 239.
7. INDICTMENT AND AFFIDAVIT — Sufficiency of — Review on Appeal — Method of Presenting. — An assignment of error that the indictment or affidavit does not state facts sufficient to constitute a public offense presents no question for review on appeal, as that proposition may not be presented for the first time on appeal. p. 240.
8. CRIMINAL LAW — Constitutionality of Statute — Review on Appeal — Method of Presenting. — The constitutionality of the statute defining the offense on which the prosecution is based cannot properly be presented for the first time on appeal, but the question must first be raised in the trial court by a motion to quash the indictment or affidavit or by a motion in arrest of judgment. p. 240.
From Shelby Circuit Court; Frank E. Hutchinson, Special Judge.
Benjamin F. Drake was convicted of unlawful possession, control and use of a still for the manufacture of intoxicating liquor, and he appealed. Affirmed.
McDaniel Myers and Norman E. Patrick, for appellant.
U.S. Lesh, Attorney-General, Arnet B. Cronk and Carl Wilde, for the State.
Appellant was adjudged guilty of the offense of possessing, controlling and using a still for the manufacture of intoxicating liquor, as defined by Acts 1923, ch. 33, § 1.
Before arraignment and plea to the charge, appellant filed his verified amended motion to quash the search warrant, and the return of the service thereof, and for an order for the 1. suppression of the evidence obtained by virtue of such warrant and its execution. This motion was submitted to the court for adjudication, without attack by any motion or demurrer, and without answer thereto by the appellee. The court overruled the motion. This matter is presented by a special bill of exceptions. The principal attack made by appellant's motion to quash the search warrant, etc., is that the affidavit upon which the search warrant issued was founded exclusively upon information given to the affiant of the affidavit, and affiant's belief that the information was true, and that the magistrate who issued the search warrant heard no evidence in support of the affidavit to obtain the issuance of the search warrant. The ruling of the court upon appellant's motion upon these facts constituted error. Wallace v. State (1927), 199 Ind. 317, 157 N.E. 657.
The cause was submitted for trial to a jury upon the plea of not guilty, which resulted in a verdict of guilty, and judgment upon the verdict.
At the trial appellee was permitted by the court to introduce in evidence the affidavit for the search warrant, the warrant and return thereon, the still which was exhibited to the officers by appellant, and oral evidence by the officers of what they were shown in connection with the still by appellant, which was a large quantity of corn mash, and that the still was in full operation when exhibited by appellant. The appellant claimed ownership of the still and ingredients of distillation, and said that it was the first distilling he had ever done. All this evidence was admitted over the objections of appellant. At the time the officers presented themselves to appellant upon the premises where the still and materials for distillation were located, and had informed appellant they had a search warrant for these premises, he told the officers that he had a still then in operation and the place of its location. He then led the officers to the small building in the orchard where the still was in operation, unlocked the door and exhibited the still.
One of the appellant's propositions is that his actions before and words spoken to the officers, were not an invitation to search, and that his actions and words were procured 2-5. by the alleged invalid search warrant. The admission by appellant that he then was in the act of the commission of a felony did not constitute an invitation to search the premises. His admission is in no manner analogous to an invitation. The proposition of law made by appellant applies to cases where there is a mere acquiescence, no matter by what language made, without the open confession of then and there being in the act of the commission of a felony. This case is distinguished from the case of Meno v. State (1925), 197 Ind. 16, 148 N.E. 420, in which latter case there was respectful acquiescence to the law, but not an admission of guilt. Upon the admission made to the officers, it was their duty to arrest appellant without a warrant of arrest. After the admission of the act of then committing a felony, appellant led the officers to see the still; they did not search for the still. It is therefore competent for the officers to testify to the fact of the admission made, and as well of the exhibition of the still in operation, and the ingredients of distillation. The introduction of the evidence upon the ground of the search warrant and a search thereunder over objection would be erroneous, if that ground of objection stood alone, because the search warrant was subject to the motion to quash it; but that ruling becomes harmless, because the evidence, necessary to sustain the verdict, was the evidence of appellant's admission of then committing a felony, and his exhibiting thereafter the instruments by which he was accomplishing the unlawful and felonious act. The evidence was competent for that reason. There is sufficient competent evidence to sustain the verdict of guilty.
Complaint is made of instruction No. 1 given by the court for the reason that it is based upon the hypothesis that the mere possession of a still for the manufacture of 6. intoxicating liquor is an offense under the statute. The instruction extends to the use of the still as well as to its mere possession. The objection to the instruction does not embrace the instruction as a whole. The part of the instruction not embraced in the objection to it defeats the objection.
Complaint is made of instruction No. 15. This instruction advised the jury that, under the laws, both national and state, appellant and his property were not subject to search unless the officer was either authorized to search and seize by a warrant or by the consent of appellant; and, if the jury found beyond a reasonable doubt that appellant gave his consent to search and seize, it mattered not whether the officer had a warrant for search and seizure. If the abstract proposition embraced within the instruction that it was within the province of the jury to determine whether or not consent to search and seize is or is not given by the proper person, which is not here decided, the instruction might properly be held incorrect for the reason that it fails to advise the jury of the law which constitutes a consent to search and seize. But, as herein stated, appellant informed the officers that a felony was then being committed on the premises, whereby it was unnecessary to execute the search warrant. For which reason it is unnecessary to consider and decide the proposition which relates to this instruction. Instructions Nos. 16 and 17 were of the same general legal import as No. 15 (writ to search and seize). Instruction No. 16 turns upon the question of invitation and consent by appellant; and instruction No. 17 turns upon the question of the validity of the search warrant, and that the search was unreasonable and illegal unless made by authority of a valid search warrant, or "with the full and free consent of the defendant." The same reason given above for not considering and deciding the propositions which relate to instruction No. 15, applies to instructions Nos. 16 and 17. The officers knew by appellant's admission that he was then and there committing a felony, and they did not violate any legal rule of conduct by following appellant to the small building in the orchard and there seeing the still in operation, as exhibited by appellant.
Appellant's assigned error that, "The affidavit does not state facts sufficient to constitute a public offense," does not present a question for review upon appeal. This 7, 8. assignment, however, is founded upon the proposition that the statute (Acts 1923, ch. 33, § 1) is unconstitutional, and not upon the overruling of the motion to quash the affidavit which charged the offense. This proposition may not be presented for the first time here. Pittsburgh, etc., R. Co. v. Town of Wolcott (1904), 162 Ind. 399, 69 N.E. 451; King v. State (1921), 191 Ind. 306, 132 N.E. 628.
The other assigned errors are: "The court has no jurisdiction to render the judgment rendered herein," and, "The judgment rendered by the court herein is void." These two assignments of error are based upon the asserted unconstitutionality of the statute which defines the offense. It is not disclosed by the brief that the constitutionality of the statute, which defines the offense charged at bar, was presented for decision to the trial court. Although the jurisdiction of the court may be presented at any stage of the trial, and upon appeal ( Partlow v. State, 194 Ind. 172, 141 N.E. 513), yet, here that question is based solely upon the validity of the statute. The constitutionality of a statute cannot properly be presented to the Supreme Court for the first time on appeal. Pittsburgh, etc., R. Co. v. Town of Wolcott, supra; Lindsay v. State (1924), 195 Ind. 333, 145 N.E. 438; Atlas Securities Co. v. Grove (1922), 79 Ind. App. 144, 137 N.E. 570; Dodge v. Cornelius (1901), 168 N.Y. 242, 61 N.E. 244; Borough of Park Ridge v. Reynolds (1907), 74 N.J. Law 449, 65 A. 990; Matheson v. Branch Bank of Mobile (1849), 48 U.S. (7 How.) 260, 12 L.Ed. 692. See: Fritz v. State (1912), 178 Ind. 463, 468, 469 (8), 99 N.E. 727. Contra: Commonwealth v. Hanna (1907), 195 Mass. 262, 11 L.R.A. (N.S.) 799, 122 Am. St. 251, 11 Ann. Cas. 514, 81 N.E. 149.
The court did not err in overruling the motion for a new trial. No reversible error of the trial court is presented.
Gemmill, J., and Martin, C.J., concur in conclusion.