Smith v. State

177 N.E. 898, 202 Ind. 684, 1931 Ind. LEXIS 43

• Court: Indiana Supreme Court
• Decided: October 13, 1931
• Docket: No. 25,150.
• Status: Published

Opinion

Martin, C. J.

was convicted for violating §4, ch. 48, Acts 1925, §2717 Burns 1926. Errors assigned here present the question of the admissibility in evidence of intoxicating liquor seized and information gained by police officers while making a search of appellant’s premises under a search warrant (provided for by §31, ch. 48, Acts 1925, §2746 Burns 1926). The search warrant was issued without a sufficient showing that reasonable and probable cause existed for the search—there being neither a positive allegation of facts in the affidavit for the search warrant, nor a hearing of evidence by the issuing magistrate. Becker v. State (1928), 200 Ind. 397, 164 N. E. 27; Gwinn v. State (1929), 201 Ind. 420, 423, 166 N. E. 769; Seeger v. State (1929), 201 Ind. 469, 474, 168 N. E. 577.

Judgment reversed, with instructions to sustain appellant’s motion for a new trial.

Myers, J., absent.