Karlen v. State

Travis, J. This is an appeal from a judgment of a fine of one hundred dollars and imprisonment in the Indiana Reformatory for not less than one year nor more than two years, rendered upon a verdict of guilty of transporting intoxicating liquor in an automobile, as charged by indictment. (Acts 1923, ch. 34, p. 108.) The crime is alleged to have been committed December 19,1924. Errors are laid upon the decision of the court in permitting the introduction of evidence over objection, and *148 upon giving and refusing to give certain instructions to the jury over objections; and, that the verdict is not sustained by sufficient evidence, and is contrary to law. Appellant, together with three others whom he had invited to ride with him; drove a coupe automobile out of the city of Muncie about seven o’clock in the evening, and stopped in the roadway next to which was a stone quarry. Previously the same evening ten police officers of Muncie, and four federal officers, had driven to the stone quarry. When appellant and his companions were at or near the stone quarry, they saw two automobiles parked at the side of the roadway, which were the ones the officers’ party used to go to the quarry. Upon seeing the men one of the appellant’s party asked if everything were “all right”. Appellant had stopped and the four had alighted from the coupe, when the officers drew several pistols and covered the three companions of appellant, who had alighted from the right side of the car. Appellant had alighted from the driver’s seat on the left side of the coupe and had run away. The officers fired many shots and placed the three companions of appellant under arrest and searched them. Thereupon the officers took the three under arrest and the coupe, to the jail at Muncie. The back part of the coupe was locked. One of the officers forced it open with a claw hammer, and found two five gallon cans of grain alcohol. One of the federal officers testified that the officers’ party “pulled out to what they call the Cornbread Road, to the stone quarry,” and to the question by the prosecuting attorney, “Did you know that there was to be some liquor delivered there?” answered, “Yes, sir.” This narration covers the evidence in support of the verdict. The evidence does not disclose or suggest that appellant had ever committed a felony, or that any of the officers believed that he had ever committed a felony, or that *149 he was about to commit a felony; neither does the evidence show that, at the time appellant stopped the coupe near them, he was then committing a misdemeanor, or that the officers or any one of them believed appellant was then committing a misdemeanor. The evidence does show that the officers did not have a warrant for the arrest of appellant or either of his three companions, and also, that the officers did not have a search warrant to search the three arrested, the appellant, or the coupe. Appellant objected to questions put to the officer witnesses, which elicited answers concerning the search, for the reason that the rights guaranteed appellant by the constitution concerning search and seizure would be violated, which objections were overruled. There is such a great number of such questions and objections, that it is deemed sufficient to state the substance and purpose of the questions and the objections, to show the application of the law, without stating separately each question and the objection made to it by appellant. Neither appellant nor any one or all of his three companions were committing a misdemeanor within the knowledge of the officers, or any one of them, at the time of the arrest of the three; neither did the officers have any ground for believing that appellants or any one, or all, of his companions were then committing, or that they previously had committed, a felony. It is useless to prolong this opinion to restate the law which pertains to the right of an officer to arrest or search and seize under such a state of facts and circumstances. Robinson v. State (1925), 197 Ind. 144, 149 N. E. 891. That the federal officer testified, “Yes, sir,” to the prosecuting attorney’s question, “Did you know that there was to be some liquor delivered there?” lends no support to a basis for a finding of probable cause for either arrest or search and seizure. Neither this question nor its answer pertained to appellant or his compánions. *150 This case is not unlike the case of Batts v. State (1924), 194 Ind. 609, 144 N. E. 23, upon the proposition under consideration. The officers were ready to snare, upon suspicion, any one who came to the stone quarry that evening. Suspicion alone is not probable cause for a writ of arrest or for search and seizure, and further, it is not probable cause for arrest or search and seizure without a writ, under circumstances such as are present here. The finding of the grain alcohol by the search, if the search was without probable cause when the coupe was taken possession of by the- officers, lends no support to the verdict. Batts v. State, supra. The questions which elicited the fact of search and seizure were met with proper objections. Appellant’s objections to such questions should have been sustained. The evidence would then be insufficient to sustain the verdict'. The questions which relate to the charge by the court to the jury concerning the evidence will not arise upon a retrial of the case, and hence are not determined. The verdict is not supported by sufficient evidence. The motion for a new trial should have been granted. The Delaware Circuit Court is ordered to grant appellant’s motion for a new trial. Judgment reversed. Martin, J., dissents. Gemmill, J., absent.