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(144 N.E.) ky which Ford went to obtain, and became The judgment is reversed, with directions angry when Ford told him that the bottle of to sustain the motion of appellant for a new whisky got broke, and, after asserting that trial. he was going to have his dollar, boarded the street car, and that appellant gave this account of the transaction when first arrested. There was an intimation that ap BATTS V. STATE. (No. 24388.) pellant bad "a police record" known to the trial judge without being proved, and the (Supreme Court of Indiana. June 3, 1924.) prosecuting witness admitted that he had him-11. Criminal law w 1130(2)—Statement in self been twice convicted, and had served

brief of reason for filing motion to quash af. terms of imprisonment for grand larceny and fidavit held sufficient. for petit larceny, respectively.

Statement in appellant's brief that reason [2, 3] Counsel for appellee insist that from for filing motion to quash was that affidavit did the facts proved an inference might be drawn not state "offense or a violation of lawheld that when Ford made the demonstration of sufficient, under Burns' Ann. St. 1914, § 2065, force with a gun, as testified, appellant was to authorize consideration of motion. "standing by” to give assistance if that 2. Intoxicating liquors Cw222-Affidavit must should be necessary, being present for that allege "unlawful" transportation. purpose. But the defendants were not con It is not necessary to negative exceptions victed of robbery. On the contrary, the find- in Prohibition Law 1917, c. 4, as amended by ing of guilt only of larceny amounted to an Acts 1921, c. 250, and Acts 1923, c. 23, in af. acquittal of the charge of having taken the fidavit charging transportation of intoxicating money "forcibly, by violence and putting liquor, but act alleged must be characterized as (the owner) in fear.” Ward v. State, 188

unlawful. Ind. 606, 607, 125 N. E. 397; Beaty v. State, 3. Criminal law Om 1134(3)-Whether finding 82 Ind. 228, 229; Harvey v. State, 80 Ind. was sustained by evidence or contrary to law 142, 144. Being found guilty only of the

not considered where judgment must be relesser offense, and not guilty of robbery,

versed for other error. we need not determine whether the evidence

Whether finding was sustained by sufficient would have justified the suggested inference evidence or was contrary to law need not be in deciding that appellant was guilty of for erroneous refusal to quash affidavit.

considered where judgment must be reversed: robbery, if the trial court had drawn it; but the sole question presented for our con- 4. Searches and seizures Om7-Capture of liqsideration is whether or not there was evi

uor in automobile without search warrant dence to support an inference that appellant

violates constitutional rights. stole or participated in stealing the money

Capture of intoxicating liquor found in aufrom Ferguson, as alleged in the second tomobile at time of occupant's arrest by search

and seizure of her effects without warrant, is count of the indictment. Clearly there was violation of occupant's rights under Const. art. not. The mere fact that appellant was with 1, 8 11 (Burns' Ann. St. 1914, $ 56). Ford when Ferguson met and spoke to them,

Unlawful and that he walked out to the curb and then 5. Intoxicating liquors Em 249

search for liquor not lawful because liquor is out toward the car track, and “never opened

found. his mouth” nor said anything when Ford

Unlawful search for liquor does not betook the money, and that he and Ford then

come lawful because liquor is found. "went on either side of the alley," as Ferguson boarded a street car, taken in connec-6. Criminal law e394_Evidence procured by

unlawful search and seizure inadmissible. tion with the undisputed fact that the parties had been acquainted for many years, and

Evidence procured by unlawful search and had been together at different times, fails seizure is not admissible against defendant. to prove that he acted with a felonious intent to assist Ford in stealing Ferguson's Appeal from Circuit Court, Putnam Counmoney, or that he had any part in taking it y; Thomas W. Hutchinson, Judge. away from Ferguson. Merely being present Stella Batts was convicted of unlawfully when another commits a crime is not enough transporting intoxicating liquor, and appeals. to make a person guilty of the offense so Reversed, with instructions to sustain mo, committed if he is not shown to have con- tion to quash affidavit. spired with his companion to commit it, nor

Little & Little, of Indianapolis, for appel. to have assisted in its commission, nor to

lant. have counseled, encouraged, hired, command

U. S. Lesh, Atty. Gen., and Mrs. Edward ed, or otherwise procured it to be committed. Franklin White, Deputy Atty. Gen., for the Sections 2095, 2647, Burns' 1914 (sections 224, State. 841, c. 169, Acts 1905, pp. 633, 742); Clem v, State, 33 Ind. 418, 432; Wade v. State, 71 WILLOUGHBY, J. This was a prosecuInd, 535, 542.

tion charging the appellant with the transFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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portation of intoxicating liquor under the It is not necessary to consider these quesProhibition Law of 1917, C. 4, p. 15, as tions because the judgment must be reversed amended by Acts of 1921, c. 250, p. 736, and for error of the court in refusing to susas further amended by Acts of 1923, c. 23, tain the motion to quash the affidavit, but, p. 70. That act provides that,

in view of the fact that the cause may be "It shall be unlawful for any person to man- tried again upon an amended affidavit, it ufacture, transport,

any intoxicating would be well to consider the evidence upon liquor, except as in this act provided.

..which the court made its finding.

[4] There is evidence to the effect that on The appellant filed a motion to quash the March 1, 1923, the sheriff of Putnam county affidavit for the reason that it did not state left Greencastle about 1:30 p. m. with five “an offense or a violation of the law." This deputies, and drove in an automobile out motion was overruled to which ruling of the on the old Rockville road or Ocean to Ocean court the appellant at the time excepted. highway. Two of these men were armed with The appellant then waived arraignment and rifles and the others had revolvers. The pleaded not guilty to the charge against her. sheriff and two of his men went to the top The trial was by the court without a jury, of the big hill east of Walnut bridge, and and the court found the appellant guilty and the other two stopped down along the roadfined her in the sum of $100 and sentenced side by a barn. The sheriff had a signal up, her to the Woman's State Prison for six a red flag; the sheriff said the red flag was months. Appellant then filed a motion for a signal, and that “when you want to stop a new trial, which was overruled, and to anybody it is better to give them a signal which ruling the appellant excepted. From than to try to stop them.” The sheriff said such judgment the appellant appeals, and he had no knowledge of any particular vioassigns as error: (1) The overruling of ap- lations of the law, but searched machines pellant's motion to quash the affidavit; (2) passing along the highway, but did not find the overruling of appellant's motion for a any liquor. When this appellant and her new trial.

husband were seen coming the sheriff said [1] We will first consider the motion to he had no suspicion that anything was wrong quash. The state objects to consideration with them, but he and his deputies walked of this motion because the motion is not set out in the road and were standing in the out in appellant's brief. This, objection is middle of the road. One deputy had a rifle. not well taken. In appellant's brief she says When the appellant's husband saw the red that the reason for filing the motion to flag and the men step out into the middle quash was that the affidavit did not state an of the road, one armed with a rifle and the offense or a violation of law." Section 2065, others with revolvers, he turned around and Burns' 1914, sets out four reasons for which started the other way, going as fast as the an indictment or affidavit may be quashed. car would take them, but the sheriff had The second of these reasons is that the facts placed two men at an old barn at the roadstated in the indictment or affidavit do not side between Walnut bridge and the top of constitute a public offense.' This is substan- the hill. One of the men thus stationed at tially the same as the reason given in appel- the roadside opened fire on the fleeing car, lant's motion to quash, and is sufficient. and was so successful that one front tire and

[2] The appellant says that the affidavit one hind tire were punctured with bullets failed to charge the appellant with having and the radiator disabled, but the car was "unlawfully" committed the offense charged. kept going until they were in front of a An examination of the statute discloses that dwelling house. thinking, as they said, they not all transportation of intoxicating liquor would not be shot in front of the house. is unlawful. The statute says such transpor- There is further evidence to the effect that tations shall be unlawful except as in this when the sheriff stationed these two depuact provided. It is not necessary to nega- ties at the old barn at the roadside they were tive exceptions contained in the statute in instructed by the sheriff to shoot if persons the affidavit charging the offense, but it is did not stop when they ordered them to do necessary to characterize the act alleged to be so. One of these men ordered the appellant a crime as "unlawful." It was error for the and her husband, who was driving the car, court to overrule appellant's motion to quash. to stop. The man who did the shooting tesSee Bishop, Crim. Procedure, $ 503; State tified that he had no warrant for the arrest v. Maddox, 85 Ind. 585; Sovine v. State, of any one, and did not know that any law 85 Ind. 576; Scudder v. State, 62 Ind. 13; had been violated, but he had been told by Stropes v. State, 120 Ind. 562, 22 N. E. 773; | the sheriff that he had a right to stop any State v. Closser, 179 Ind. 230, 99 N. E. 1057; person without a warrant on the highway Asher v State (Ind. Sup.) 143 N. E. 513 (over- although the person was not a violator of ruling petition for rehearing).

the law, and, acting on these instructions, [3] Appellant claims that it was error to he ordered the appellant and her husband to overule her motion for a new trial because stop, and they not stopping he proceeded to the finding of the court was not sustained by shoot the tires with his rifle; "I fired three sufficient evidence and was contrary to law. shots all told," he said. When the appel

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(144 N.E.) lant and her husband turned and went in No intoxicating liquor was found in the the other direction from the sheriff and his car. deputies and the red flag, the sheriff says he There was some evidence that Mr. Batts, got in his car and followed. He said he after his car was shot up, threw something heard several shots, and had authorized out. Some witnesses for the state testified shooting to stop cars when halted, although that they went to the place and found some there was no evidence of guilt except that wooden kegs and jugs that smelled like they the party failed to stop when ordered to had had whisky in them. This evidence was do so. When they caught up with the appel- admitted over the appellant's objections that lant and her husband who was examining they were procured by an unlawful search the tires they say he was on the top of the and seizure of appellant's effects without hill ; "the machine was down, the tires any search warrant in violation of appellant's down, and the radiator down."

constitutional rights. If it is true that the It appears from the testimony of the sher- Batts had in their car intoxicating liquor at iff and his deputies, who are not contradict the time of their arrest, it is also true, aced, that the appellant and her husband were cording to the testimony of the sheriff and traveling in a Ford coupé along the Ocean his deputies, that the sheriff in accomplishing to Ocean highway; that the sheriff and his its capture violated the constitutional rights assistants had no search warrant for any of the appellant as guaranteed by article 1, one; that they saw no evidence of the viola- $ 11, of the Constitution of Indiana (Burns' tion of any law by the appellant or her hus. 1914, § 56); Callender v. State (Ind. Sup.) band, and did not suspect them of any when 138 N. E. 817. Article 1, $ 11 (Burns' 1914, the sheriff and his deputies, all armed, walk- $ 56), provides as follows: ed out in the middle of the road in front of

"The right of the people to be secure, in them; that the appellant's husband, driv- their persons, houses, papers, and effects, ing the car, then turned around and started against unreasonable search or seizure shall to go in the opposite direction from the arm not be violated; and no warrant shall issue, ed men ; that he gave as a reason for turn- | but upon probable cause, supported by oath or ing that he thought they were highwaymen; affirmation, and particularly describing the that the armed men stationed at an old place to be searched and the person or thing barn on the roadside, without seeking or sus

to be seized.” pecting any violation of the law, ordered them to halt, and on their failing to do so A similar provision is found in the United shot up and disabled their car, and then, States Constitution and the Constitution of after being joined by the sheriff, arrested nearly every state in the Union. them. Their only excuse for the arrest is In Hughes v. State of Tennessee, 145 Tenn. that the appellant and her husband did not 544, 238 S. W. 588, 20 A. L. R. 639, it was stop when ordered to do so. When the sher- held that, where police officers arrestone iff had caught up with the fleeing man and on the highway without a warrant or eviwoman in their disabled Ford coupé the dence of commission of crime in their pressheriff's deputy, Mr. Donahue, got out of the ence, evidence discovered by the search of car first, and Mr. Batts, appellant's husband, his person and conveyance subsequently to said to him, "Are you the man that was the arrest cannot be utilized to secure his shooting at me?' and Mr. Donahue said, conviction. "No; I was not shooting at you but at your Hughes v. State, supra, finds support by tire;" and the appellant and her husband analogy in Roberson v. State, 43 Ma. 156, 29 were then arrested by the sheriff. The sher- South. 535, 52 L. R. A. 751; Pickett v. State, iff says one or two machines went by before 99 Ga. 12, 25 S. E. 608, 59 Am. St. Rep. 226; these persons came along. “We did not hola State v. Lutz, 85 W. Va. 330, 101 S. E. 434; them up; we compelled them to stop, and Douglass v. State, 152 Ga. 379, 110 S. E. just looked into the car and told them to go 168; Caffinni v Hermann, 112 Me. 282, 91

Atl. 1009; People v. Marxhausen, 204 Mich. The testimony of the appellant and her 559, 171 N. W. 557, 3 A. L. R. 1505; Gouled husband was to the effect that they lived v. United States, 255 U S. 298, 41 Sup. Ct. near Indianapolis, and that Mrs. Batt's fa- 261, 65 L. Ed. 647; Youman v. Commonther lived at Terre Haute, and that he had wealth, 189 Ky. 152, 224 S. W. 800, 13 A. L. written her on February 28 that he was R. 1303; Amos Case, 255 U. S. 313, 41 Sup. sick and wanted to see her, and that in pur. Ct. 266, 65 L. Ed. 654; Fidelity & Guaranty suance to that request they had gone to Co. v. State, 121 Miss. 369, 83 South. 610; Terre Haute; that her husband drove the State v. Peterson, 27 Wyo. 185, 194 Pac. car, and she had nothing to do with the 342, 13 A. L. R. 1284. See, also, United management or control of it; that they came States v. Slusser (D. C.) 270 Fed. 818, and back by way of Rockville because they had cases there cited; United States v. Kelih (I learned the road was better that way; that C.) 272 Fed. 484; United States v. Rykowski they had no intoxicating liquor in the car (D. C.) 267 Fed. 866; Dukes v. United States or on their persons

(C. C. A.) 275 Fed. 142, and cases there cited.

on."

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(5] A search for liquor which was unlaw- 15. Judgment 457–One alleged to have aided ful when it began does not become lawful in fraudulently obtaining judgments, but because liquor is found. United States v.

against whom no relief was sought, held not a Slusser, supra.

necessary party to cross-complaint. [6] Evidence procured by an officer by un

In an administrator's proceeding to sell lawful search and seizure is not admissible heirs filed cross-complaint in the nature of ac

real estate to pay judgment creditors, where against a defendant. Callender V. State tion to set aside the judgments for fraud, one (Ind. Sup.) 138 N. E. 817; Gouled v. United not a party to any of the judgments, and who States, supra; Amos v. United States, su- the cross-complaint alleged aided the fraud but pra.

against whom no relief was asked, was not a For error in overruling appellant's mo- necessary party to the cross-complaint, in view tion to quash the affidavit, the judgment of Burns' Ann. St. 1914, § 269. must be reversed.

6. Appeal and error eum I061 (2)-Dismissal as Judgment reversed, with instructions to

to party whom amendment could not make sustain appellant's motion to quash.

necessary party is harmless.

Where the pleading is insufficient as against a party, and is not amendable to state a cause of action against him, dismissal as to him is

harmless. PATTISON et al. v. GRANT TRUST & SAV. INGS CO. et al. (No. 24629.)

7. Executors and administrators Om 338

Cross-complaint, in proceeding to sell land, (Supreme Court of Indiana. May 23, 1924.) properly dismissed as to parties whose claims

were not alleged to have been allowed against 1. Appeal and error Om761-Failure of appel estates. lant's brief to state points and propositions

In an administrator's proceeding to sell under error assignments waives error.

property to satisfy judgments on decedent's Under Supreme Court Rule 22, failure of notes, a cross-complaint by heirs, alleging fraud appellant's brief to state points or propositions in obtaining the notes and joining certain parreferring to, or under the heading of, certain ties as buyers of some of the notes, was propassignments of error, waived the errors. erly dismissed as to them, in the absence of 2. Insane persons 100-Judgment on notes allegations that their claims had been filed or in action against guardian held res judicata. allowed against the estate, in view of Burns'

Ann. St. 1914, § 2844. As respects notes executed before maker became insane and guardian was appointed 8. Appeal and error 1011(1)-Judgment not for him, judgments on the merits on the notes disturbed where evidence conflicting. in actions against the guardian, in which sum Where the evidence conflicts, the judgment mons for the ward was served by reading to of the trial court will not be disturbed. the guardian under Burns' Ann, St. 1914, § 318, were not merely equivalent to making allowance

Appeal from Circuit Court, Grant Coun. es against guardian for amounts of the notes under section 2838, which allowances would be ty; G. H. Henry, Special Judge. extinguished when guardianship was terminat Proceeding by the Grant Trust & Savings ed, but the judgments were conclusive of the Company, as administrator of the estate of validity of the notes, precluding attack on that James I. Hogston, deceased, and others, in ground by heirs in proceeding by administra- which Mary A. Pattison and other heirs for to sell deceased maker's realty to make filed cross-complaint. Transferred from Apassets to pay the judgments.

pellate Court under section 1397, Burns' Ann. 3. Insane persons 95Statute as to con- St. 1914. Judgment for the administrator,

structive notice construed; "personal serv- and cross-complainants appeal. Affirmed.
ice."
Burns' Ann. St. 1914, $ 399, prohibiting J. Houck and John A. Kersey, both of Ma-

Wm. H. Eichhorn, of Bluffton, and Wm.
personal judgment upon constructive notice,
refers to notice given under sections 320, 322, rion, for appellants.
323, and not to summons to person of unsound Stricler & Messick, Van Alta & Clawson,
mind served upon the guardian of such person and David M. Bell, all of Marion, for appel-
under section 318; such service being personal lees.
service.
[Ed. Note.-For other definitions, see Words

GAUSE, J. Appellee the Grant Trust & and Phrases, First and Second Series, Personal Service.]

Savings Company, as administrator of the

estate of James I. Hogston, deceased, filed 4. Judgment am 17(3)-Court cannot acquire its petition herein to sell the real estate of jurisdiction by constructive service to ren- said decedent to make assets with which to der personal judgment against nonresident.

pay the debts of said estate. Said petition A court cannot acquire jurisdiction by con- alleged that a part of the indebtedness of structive, or substituted, service, to render a said estate consisted of five judgments, personal judgment against a nonresident, not appearing, but as to residents within the 'state amounting to about $15,000, which had been the Legislature may authorize personal judg- rendered against said decedent in his lifements upon proper substituted service.

time; the judgment creditors in said fiva em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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judgments being Richard A. Hogston, Emma Jaqua, and Emma Frelof Jaqua, who are also appellees herein. The appellants are two of the children of said decedent and were made defendants to said petition to sell. Appellants filed a partial answer to said petition, in which answer it was alleged that said judgments were rendered upon notes which were forgeries and which had been procured through fraud and by duress and without consideration. It was also alleged that said decedent, at the time the judgments were rendered, was under guardianship as an infirm person, and that he was weak physically and mentally and unable to be present in court when said judgments were rendered. It is then alleged that said judgments were procured through the fraud and collusion of the judgment plaintiffs with the guardian and his attorney, and also that through the fraudulent conduct of another son of the decedent no defense was made to said actions. It is alleged that said judgments are void, and appellants say that there is no necessity to sell said real estate to pay such judgments, and ask that only So much of the real estate be ordered sold as is necessary to satisfy other debts of said estate. The court upon motion of appellees struck out parts of said answer which sought to attack the validity of said judgments and of the notes upon which they were framed, because of alleged fraud in the procurement of said notes. Appellants filed a cross-complaint and made defendants thereto the administrator of said estate, the judgment plaintiffs in said five judgments, and also Alfred Hogston, Thomas D. Barr, and the Citizens' Trust & Savings Company. Said cross-complaint was in the nature of an action to set aside said judgments on the ground of fraud practiced in obtaining them. It is alleged in said crosscomplaint that said five judgments were rendered upon notes which were spurious and were obtained through duress practiced by said Alfred Hogston; that said Alfred Hogston obtained a series of spurious notes from said decedent by fraud and duress and distributed some of them to the said judg... ment plaintiffs, and that he sold one of said notes to Thos. D. Barr and one to the Citizens' Trust & Savings Company. It is then alleged that said five judgments were obtained through the fraud of the judgment plaintiffs and said Alfred Hogston. It is alleged that at the time suits were brought by said Richard A. Hogston, Emma Jaqua, and Emma Trelof Jaqua, the said James I. Hogston was under guardianship and unable to assist in any defense to said notes, and that said plaintiffs and Alfred Hogston fraudulently prevented any defense being made thereto and fraudulently induced the guardian of said James I. Hogston to be

lieve that said notes were valid. It is also alleged that said parties prevailed upon Said guardian to prevent other attorneys employed by the appellants from appearing in said suits and defending the same. The prayer of said cross-complaint was that said five judgments be set aside and that the appellants be permitted to set up said defenses to said notes and for other proper relief. The court upon motion dismissed said Cross-complaint as to Alfred Hogston, the Citizens' Trust & Savings Company, and Thos. D. Barr. The issues were closed by general denials. The appellants filed with their cross-complaint separate lists of interrogatories which they asked that Alfred Hogston, Emma Jaqua, and Emma Trelof Jaqua be required to answer. These interrogatories all related to the validity of the notes upon which the judgments were rendered and concerned the consideration therefor and the circumstances under which they were given. The court upon motion struck out all of said interrogatories. Said cause was submitted to the court, and there was a finding and judgment for the administrator upon his petition to sell and against the cross-complainants upon their cross-complaint, and said land was ordered sold, and there was a judgment against appellants for costs upon the cross-complaint. [1] Appellants filed a motion for a new trial, which contained many alleged reasons, but the only stated reason referred to in appellants' statement of points and authorities in their brief is that the finding of the court is not sustained by sufficent evidence. The court overruled the moton for a new trial. The appellants have assigned as error in this court the following:

“(1) The court erred in sustaining the motion to strike out parts of the amended partial answer, as to the first paragraph of the motion. “(2) The court erred in sustaining the motion to strike out parts of the amended partial answer, as to the second paragraph of the motion. “(3) The court erred in striking out the interrogatories to Alfred Hogston. “(4) The court erred in striking out the interrogatories to Richard A. Hogston. “(5) The court erred in striking out the interrogatories to Emma Jaqua. “(6) The court erred in striking out the interrogatories to Emma Frelof Jaqua. “(7) The court errod in sustaining the motion of Alfred Hogston to dismiss the amended cross-complaint as to himself. “(8) The court erred in sustaining the motion of the Citizens' Trust & Savings Company to dismiss the amended cross-complaint as to it. “(9) The court erred in sustaining the motion of Thomas D. Barr to dismiss the amended cross-complaint as to himself. “(10) The court erred in overruling the motion for a new trial.”

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