Rose v. State

87 N.E. 103, 171 Ind. 662, 1909 Ind. LEXIS 111

• Court: Indiana Supreme Court
• Decided: February 5, 1909
• Docket: No. 21,286
• Status: Published

Opinion

Monks, J.

This was a proceeding in the nature of a libel, brought -under sections' two to fourteen of an act approved February 13, 1907 (Acts. 1907, p. 27, §8338 et seq. Burns 1908), to procure the seizure and destruction of certain intoxicating liquors. Such proceedings were had that final judgment was rendered, ordering that the boxes, barrels, demijohns, jugs and bottles and the intoxicating liquors contained therein, taken under the search-warrant, be destroyed.

From this judgment appellants appealed and assigned errors, calling in question the action of the court in overruling the motion to quash the affidavit on which the search-warrant was issued, the motion to quash said search-warrant and the sheriff’s return thereon, the separate motion of each appellant for a new trial, and the separate motion of each appellant in arrest of judgment.

It is insisted that sections two to fourteen of said act of 1907 are unconstitutional because in violation of article 4, §19, of the Constitution of this State, which provides that “every act'shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall- not be expressed in the title, such act shall be void only as .to so much thereof as shall not be expressed in the title.” The only ground stated for this contention is “that the provisions of said act make certain facts, if shown, prima facie evidence of some of the facts necessary to be established in a proceeding under said sections. ” •

1. 2. The subject of the act of 1907, supra, is that of the act of 1875 (Acts 1875 [s.s.], p. 55), of which it is an amendment, and which is expressed in the title as follows: “An act to regulate and license the sale of spirituous, vinous and malt and other intoxicating liquors,” etc. The provisions in said act in regard to the search, seizure and destruction of “intoxicating liquors unlawfully kept to be sold in violation of the laws of this State,” and in regard to what shall be prima facie evidence of certain facts in such cases, and what courts shall have jurisdiction, are clearly germane to, properly connected with, and embraced in, the subject expressed in the title of said act of 1875. The title thereof is sufficient to include said provisions embraced in the amendatory act of 1907. Said provisions in said amendatory act of 1907 are mere details of the method by which the sale of intoxicating liquors is to be regulated, and are appropriately and properly connected therewith. The following cases fully support this conclusion: State v. Gerhardt (1896), 145 Ind. 439, 458, 459, 33 L. R. A. 313, and cases cited; Lewis v. State (1897), 148 Ind. 346, 349; Brandon v. State (1861), 16 Ind. 197; Parks v. State (1902), 159 Ind. 211, 229-231, 59 L. R. A. 190, and cases cited; State, ex rel., v. Board, etc. (1906), 166 Ind. 162, 189, 197, 198; Board, etc., v. Albright (1907), 168 Ind. 564, 568-570, and cases cited; Western Union Tel. Co. v. Braxtan (1905), 165 Ind. 165, 167-170; Bitters v. Board, etc. (1881), 81 Ind. 125, 126; Bank of the State of Ind. v. City of New Albany (1858), 11 Ind. 139, 142; State v. Adamson (1860), 14 Ind. 296, 297; State, ex rel., v. Board, etc. (1866), 26 Ind. 522, 525; Bright v. McCullough (1866), 27 Ind. 223, 226; Shoemaker v. Smith (1871), 37 Ind. 122; Peachee v. State (1878), 63 Ind. 399, 401; State, ex rel., v. Sullivan (1881), 74 Ind. 121; Shipley v. City of Terre Haute (1881), 74 Ind. 297; Kane v. State, ex rel., (1881), 78 Ind. 103, 108; Jett v. City of Richmond (1881), 78 Ind. 316, 317; Elder v. State (1884), 96 Ind. 162; Hedderich v. State (1885), 101 Ind. 564, 569, 51 Am. Rep. 768; Barnett v. Harshbarger (1886), 105 Ind. 410; City of Indianapolis v. Huegele (1888), 115 Ind. 581, 590.

3. It is settled in this State that the legislature has power to make.eertain acts or facts prima facie evidence of other facts necessary to be established in a legal proceeding. State v. Beach (1897), 147 Ind. 74, 79-83, 36 L. R. A. 179, and authorities cited; State v. Gerhardt, supra; Commonwealth v. Wallace (1856), 73 Mass. 222; State v. Hurley (1867), 54 Me. 562; State v. Thomas (1880), 47 Conn. 546, 36 Am. Rep. 98.

4. Appellants contend that said act is unconstitutional as applied to intoxicating liquors, because it authorizes the taking of property without due process of law. This objection is too indefinite to present any question. As was said in Pittsburgh, etc., R. Co. v. Lightheiser (1907), 168 Ind. 438, 460. “While a discussion or elaboration of a point is not proper in the statement of points, mere general statements, without specific and definite reasons specifically applied, present no question for decision.”

5. In answer to said general objection it may properly be said that said act provides for a judicial hearing, after due notice in which the owner has an opportunity to contest.the ground upon which the forfeiture is claimed. Regadanz v. State (1908), ante, 387.

6. It is next insisted by appellants that ‘ ‘ article 1, §11, of the Constitution of this State requires that the facts upon which the belief of the affiant is based must be set out in the affidavit, and that an affidavit on information and belief is not sufficient, and, as the act of 1907, supra, authorizes the issuance of such a warrant on such an affidavit, it is in violation of said section of our Constitution. ’ ’ Said section of the Constitution only requires that “no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized. ’ ’ In Lowrey v. Gridley (1862), 30 Conn. 450, under a constitutional provision substantially the same as ours, it was held that an act which authorized the issuance of a warrant to search and seize property upon the oath, of the affiant, that he “had reason to believe and did believe” the facts alleged in the affidavit to be true, was valid and not in violation of said provision of the constitution; that such oath was sufficient, and that it was not necessary that the facts upon which the belief was founded should be set out in the affidavit. See also, Black, Intoxicating Liquors, §§52, 53, 351; Oviatt v. Pond (1861), 29 Conn. 479; Lincoln v. Smith (1855), 27 Vt. 328; State v. Hobbs (1855), 39 Me. 212; Gray v. Kimball (1856), 42 Me. 299; State v. Nowlan (1874), 64 Me. 531; State v. Plunkett (1874), 64 Me. 534; State v. Welch (1887), 79 Me. 99, 8 Atl. 348; Santo v. State (1855), 2 Iowa 165, 63 Am. Dec. 487; State v. Snow (1854), 3 R. I. 64; State v. Fitzpatrick (1888), 16 R. I. 54, 11 Atl. 767; In re Horgan’s Liquors (1889), 16 R. I. 542, 18 Atl. 279; Jones v. Root (1856), 72 Mass. 435; Mason v. Lothrop (1856), 73 Mass. 354, 358.

7. It has uniformly been held by this court that even an affidavit charging one with a crime need not show that the statements contained in it are made -upon the affiant’s knowledge, but it is sufficient if made upon information and belief. Franklin v. State (1882), 85 Ind. 99, and eases cited; State v. Buxton (1869), 31 Ind. 67; Loops v. State (1883), 92 Ind. 13, 14.

8. Appellants insist that the affidavit is insufficient because it ‘ does not particularly describe the place to be searched, ’ ’ as required by article 1, §11, of the Constitution of this State. -The affidavit describes the place to be searched as the “room, house, outhouse, yard, garden and appurtenances thereto belonging, occupied by said Samuel A. Rose, and situated-upon lot thirty, on Market street, in the original plat of New Bedford, now Monon, in Monon township, White county, Indiana.” It has been held that the description will be sufficiently certain if it is such as would be required in a deed to convey a specific parcel of real estate, or if it leaves no discretion to the officer as to what place he is to search, but fully directs him in that respect. Black, Intos. Liquors, §357; Cooley, Const. Lim. (7th ed.), 429, 430; 23 Cyc., 294, 295, 297; 29 Century Digest, §374, cols. 1284-1287; Hornig v. Bailey (1882), 50 Conn. 40; State v. Brennan’s Liquors (1856), 25 Conn. 278; State v. Thompson (1876), 44 Iowa 399; Lincoln v. Smith, supra; State v. Intoxicating Liquors (1872), 44 Vt. 208; State v. Twenty-five Packages of Liquor (1866), 38 Vt. 387; Commonwealth v. Certain Intoxicating Liquors (1888), 146 Mass. 509, 16 N. E. 298; Commonwealth v. Intoxicating Liquors (1889), 150 Mass. 164, 22 N. E. 628; State v. Burke (1877), 66 Me. 127; In re Fitzpatrick’s Liquors (1888), 16 R. I. 60, 11 Atl. 773.

In State v. Thompson, supra, the place was described as “Clarke Thompson’s saloon building, in Strawberry Point, owned and kept by'said Clarke Thompson.” Held, sufficient.

In Hornig v. Bailey, supra, the description held sufficient was: “In said Danbury, near the corner of Elm street, in the borough of Danbury, within said town of Danbury, in a wooden building occupied by jean Hornig, of said Dan-bury, consisting of a one-story building, and a garden thereto attached and occupied as a saloon and place of public resort j also in another wooden building situated betw^ep Dan-bury News office and said one-story building described above, and used by said Jean Hornig as a dwelling-house; all of said buildings being within the town and borough of Dan-bury, and which said liquors are owned and kept at said place.”

In State v. Twenty-five Packages of Liquor, supra, the description was: " The American hotel and the barn, sheds and other outbuildings adjacent thereto, in Burlington and forming a part of the premises of said hotel.” The court held that “this is the designation of a single establishment, and is sufficiently specific,” and “it is a particular description. ’ ’

In Commonwealth v. Certain Intoxicating Liquors, supra, the description called for “a hotel and barn in the town of Hudson, occupied by Zephrin Lucia, known as the Valley House and barn in the rear thereof, situated' on the north side of Main street in Hudson Centre, next ea°st of the bakery, which was occupied in part by George- W. Davis. ’ ’ The court- said: “While its language was involved, and not perspicuous, we think it had no such ambiguity as to .prevent identification of the buildings and place referred to. Commonwealth v. Intoxicating Liquors [1867], 97 Mass. 63; Commonwealth v. Intoxicating Liquors [1871], 107 Mass. 386; Commonwealth v. Certain Intoxicating Liquors [1872], 109 Mass. 371-372; Commonwealth v. Certain Intoxicating Liquors [1873], 113 Mass. 208; Commonwealth v. Certain Intoxicating Liquors [1877], 122 Mass. 36.”

In Commonwealth v. Intoxicating Liquors (1889), 150 Mass. 164, 22 N. E. 628, it was held that “in a certain tenement situated on Essex street, and numbered 136 on said street, in Lawrence in said county and occupied by said Lib-bey as a common resort kept therein,” was a sufficient description of the place to be searched.

It is evident' from the authorities cited that the description in the affidavit of the place to be searched was sufficient to comply with the requirements of article 1, §11, of the Constitution of this State. Said affidavit was otherwise sufficient under the rule declared in Regadanz v. State, supra, and the cases there cited. The court did not err therefore in holding that the same was sufficient nor in overruling the motions in arrest of judgment. ' The description in the search warrant of the place to he searched was the same as in the affidavit, and was clearly sufficient, and the court did not err in overruling the motion to quash said writ aud the return of the sheriff thereon.

9. 10. It is insisted by the appellant that there whs a mistrial because no plea was entered by appellant Rose to the affidavit, citing Miller v. State (1901), 26 Ind. App. 152. This insistence of the appellants is upon the erroneous theory that this is a criminal case. This is not a criminal ease, but a statutory proceeding under the act of 1907, supra, for the search, seizure and destruction of intoxicating liquors, and is governed by the rules in civil actions so far as applicable. Regadanz v. State, supra; State v. Barrels of Liquor (1867), 47 N. H. 369, 374, 375; Kirkland v. State (1904), 72 Ark. 171, 78 S. W. 770, 65 L. R. A. 76, 105 Am. St. 25; Osborne v. State (1906), 77 Ark. 439, 92 S. W. 406; The Good Templar (1899), 97 Fed. 651; United States v. LaVengeance (1796), 3 Dall. (U. S.) *297, 1 L. Ed. 610; Barnacoat v. Six Quarter Casks of Gunpowder (1840), 1 Met. (Mass.) 225; Anonymous Case (1812), 1 Gall. *22, Fed. Cas. No. 444; Waples, Proceedings in Rem, §25.

It is next urged that the court erred in overruling appellant’s separate motions for a new trial. The grounds assigned for a new trial in each of said motions depend for their determination upon the evidence, which is not in the record. It appears from the record that at the November term, 1907, of -said court said cause was submitted to the court for trial, and that, after hearing the evidence and argument of the counsel, the court found for the State and against appellants. Afterwards on the nineteenth day of the February term, 1908, of said court, the same being March 2, 1908, the court overruled appellants’ separate motions for a new trial, to which ruling they each separately excepted. No time was then, or on said day, given by the court within which to file a bill or bills of exceptions. Several days afterward, and before the adjournment of said February term, ninety days were given appellants' within which to file bills of exceptions. The bill of exceptions in this case was filed in vacation after the expiration of said February term.

11. It is well settled that the exceptions to the ruling of a court must be taken at the time the rulings are made, but time may be given by the court to a party taking the exceptions to prepare and file a bill of exceptions showing such rulings and exceptions, but not beyond the term, unless by special leave of the court. §656 Burns 1908, §626 R. S. 1881; Elliott, App. Proc., §§785, 786; Ewbank’s Manual, §§7, 24; Brown v. Ohio, etc., R. Co. (1893), 135 Ind. 587, and cases cited; Minnick v. State, ex rel. (1900), 154 Ind. 379, 382-384; Citizens St. R. Co. v. Marvil (1903), 161 Ind. 506, 510.

12. 13. If time is given beyond the term for the preparation and filing of a bill of exceptions, that fact must be shown by an order-book entry, and cannot be shown by a statement in the bill itself. Ewbank’s Manual, §24, and cases in note 3; Elliott, App. Proe., §801. It is expressly provided by statute, however, that the rulings of a court ■$dfich constitute causes for a new trial and the ex-ceptmsas 'thereto, if such rulings are assigned as causes for a newNrial, are carried forward by such motion to the time of the ruSjng thereon when time may be given by the court within which t^) prepare and file a bill of exceptions containing such rulings and-exceptions. §656, supra; Ewbank’s Manual, §33; Minnick v. State, ex rel., supra; Citizens St. R. Co. v. Marvil, supra; Theobald v. Clapp (1909), 43 Ind. App.. 191.

14. It has been held by this court under §656, supra, that where the order-book entry of the same day’s proceeding in a cause shows the overruling of a motion for a new trial, and a proper exception to such ruling, and said entry also shows that time was given beyond the term within which to file a bill of exceptions, and the bill of exceptions was filed within the time limited, it is in the record, even if said order-book entry shows that other steps in said cause have intervened between the ruling on the motion for a new trial and the exception thereto, and the giving of time to file the bill of, exceptions; that such an entry shows not only that appellant excepted at the time of the overruling of the motion for a new trial, but that time was then given beyond the term, within which to file a bill of exceptions. Kopelke v. Kopelke (1887), 112 Ind. 435, 437, 439. Vogel v. Harris (1887), 112 Ind. 494, 495. Citizens St. R. Co. v. Marvil, supra.

15. In this case the motions for a new trial were overruled on March 2, 1908, the next term of court after the court made its finding in said cause. The order-book entry of that day’s proceedings in said cause only shows that said motions were overruled and appellants excepted thereto. As leave to file bills of exceptions was not given until several days after said motions for a new trial were overruled, the same was without'authority and void, for the reason that the court can only grant such leave at the time and in the manner provided by the statute, which at the time said motions were overruled. Citizens St. R. Co. v. Marvil, supra; Theobald v. Clapp, supra. As said bill oí exceptions was not filed until in vacation, after the expiration of said February term of said ec/urt, it follows that it is not in the record. Citizens St. R. Co. v. Marvil, supra; Theobald v. Clapp, supra.

16. It must be presumed that said motions for a new trial were properly overruled, nothing to the contrary being shown by the record. Ewbank’s Manual, §198; Citizens St. R. Co. v. Marvil, supra, at page 512.

Having determined all questions properly presented in. appellants’ statement of points, and finding no error, the judgment is affirmed.