(144 N.E.) trial ky which Ford went to obtain, and became p 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 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 appellant had "a police record" known to the trial judge without being proved, and the prosecuting witness admitted that he had himself been twice convicted, and had served terms of imprisonment for grand larceny and for petit larceny, respectively. [2, 3] Counsel for appellee insist that from the facts proved an inference might be drawn that when Ford made the demonstration of force with a gun, as testified, appellant was "standing by" to give assistance if that should be necessary, being present for that purpose. But the defendants were not convicted of robbery. On the contrary, the finding of guilt only of larceny amounted to an acquittal of the charge of having taken the money "forcibly, by violence and putting (the owner) in fear." Ward v. State, 188 Ind. 606, 607, 125 N. E. 397; Beaty v. State, 82 Ind. 228, 229; Harvey v. State, 80 Ind. 142, 144. Being found guilty only of the lesser offense, and not guilty of robbery, we need not determine whether the evidence would have justified the suggested inference in deciding that appellant was guilty of robbery, if the trial court had drawn it; but the sole question presented for our consideration is whether or not there was evidence to support an inference that appellant stole or participated in stealing the money from Ferguson, as alleged in the second count of the indictment. Clearly there was not. The mere fact that appellant was with Ford when Ferguson met and spoke to them, and that he walked out to the curb and then out toward the car track, and "never opened his mouth" nor said anything when Ford took the money, and that he and Ford then "went on either side of the alley," as Ferguson boarded a street car, taken in connection with the undisputed fact that the parties had been acquainted for many years, and had been together at different times, fails to prove that he acted with a felonious intent to assist Ford in stealing Ferguson's money, or that he had any part in taking it away from Ferguson. Merely being present when another commits a crime is not enough to make a person guilty of the offense so committed if he is not shown to have conspired with his companion to commit it, nor to have assisted in its commission, nor to have counseled, encouraged, hired, commanded, or otherwise procured it to be committed. Sections 2095, 2647, Burns' 1914 (sections 224, 641, c. 169, Acts 1905, pp. 633, 742); Clem v. State, 33 Ind. 418, 432; Wade v. State, 71 Ind. 535, 542. BATTS v. STATE. (No. 24388.) (Supreme Court of Indiana. June 3, 1924.) 1. Criminal law 1130(2)-Statement in brief of reason for filing motion to quash affidavit held sufficient. Statement in appellant's brief that reason for filing motion to quash was that affidavit did not state "offense or a violation of law" held sufficient, under Burns' Ann. St. 1914, § 2065, to authorize consideration of motion. 2. Intoxicating liquors 222-Affidavit must allege "unlawful" transportation. It is not necessary to negative exceptions in Prohibition Law 1917, c. 4, as amended by Acts 1921, c. 250, and Acts 1923, c. 23, in affidavit charging transportation of intoxicating liquor, but act alleged must be characterized as unlawful. WILLOUGHBY, J. This was a prosecution charging the appellant with the transFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 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 as further amended by Acts of 1923, c. 23, p. 70. That act provides that * "It shall be unlawful for any person to manufacture, transport, any intoxicating liquor, except as in this act provided. " The appellant filed a motion to quash the affidavit for the reason that it did not state "an offense or a violation of the law." This motion was overruled to which ruling of the court the appellant at the time excepted. The appellant then waived arraignment and pleaded not guilty to the charge against her. The trial was by the court without a jury, and the court found the appellant guilty and fined her in the sum of $100 and sentenced her to the Woman's State Prison for six months. Appellant then filed a motion for a new trial, which was overruled, and to which ruling the appellant excepted. From such judgment the appellant appeals, and assigns as error: (1) The overruling of appellant's motion to quash the affidavit; (2) the overruling of appellant's motion for a new trial. [1] We will first consider the motion to quash. The state objects to consideration of this motion because the motion is not set out in appellant's brief. This objection is not well taken. In appellant's brief she says that the reason for filing the motion to quash was that the affidavit did not state an "offense or a violation of law." Section 2065, Burns' 1914, sets out four reasons for which an indictment or affidavit may be quashed. The second of these reasons is that the facts stated in the indictment or affidavit do not constitute a public offense. This is substantially the same as the reason given in appellant's motion to quash, and is sufficient. [2] The appellant says that the affidavit failed to charge the appellant with having "unlawfully" committed the offense charged. An examination of the statute discloses that not all transportation of intoxicating liquor is unlawful. The statute says such transportations shall be unlawful except as in this act provided. It is not necessary to negative exceptions contained in the statute in the affidavit charging the offense, but it is necessary to characterize the act alleged to be a crime as "unlawful." It was error for the court to overrule appellant's motion to quash. See Bishop, Crim. Procedure, § 503; State v. Maddox, 85 Ind. 585; Sovine v. State, 85 Ind. 576; Scudder v. State, 62 Ind. 13; Stropes v. State, 120 Ind. 562, 22 N. E. 773; State v. Closser, 179 Ind. 230, 99 N. E. 1057; Asher v State (Ind. Sup.) 143 N. E. 513 (overruling petition for rehearing). [3] Appellant claims that it was error to overule her motion for a new trial because the finding of the court was not sustained by sufficient evidence and was contrary to law. for error of the court in refusing to sustain the motion to quash the affidavit, but, in view of the fact that the cause may be tried again upon an amended affidavit, it would be well to consider the evidence upon which the court made its finding. The [4] There is evidence to the effect that on March 1, 1923, the sheriff of Putnam county left Greencastle about 1:30 p. m. with five deputies, and drove in an automobile out on the old Rockville road or Ocean to Ocean highway. Two of these men were armed with rifles and the others had revolvers. sheriff and two of his men went to the top of the big hill east of Walnut bridge, and the other two stopped down along the roadside by a barn. The sheriff had a signal up, a red flag; the sheriff said the red flag was a signal, and that "when you want to stop anybody it is better to give them a signal than to try to stop them." The sheriff said he had no knowledge of any particular violations of the law, but searched machines passing along the highway, but did not find any liquor. When this appellant and her husband were seen coming the sheriff said he had no suspicion that anything was wrong with them, but he and his deputies walked out in the road and were standing in the middle of the road. One deputy had a rifle. When the appellant's husband saw the red flag and the men step out into the middle of the road, one armed with a rifle and the others with revolvers, he turned around and started the other way, going as fast as the car would take them, but the sheriff had placed two men at an old barn at the roadside between Walnut bridge and the top of the hill. One of the men thus stationed at the roadside opened fire on the fleeing car, and was so successful that one front tire and one hind tire were punctured with bullets and the radiator disabled, but the car was kept going until they were in front of a dwelling house. thinking, as they said, they would not be shot in front of the house. There is further evidence to the effect that when the sheriff stationed these two depu ties at the old barn at the roadside they were instructed by the sheriff to shoot if persons did not stop when they ordered them to do so. One of these men ordered the appellant and her husband, who was driving the car, to stop. The man who did the shooting testified that he had no warrant for the arrest of any one, and did not know that any law had been violated, but he had been told by the sheriff that he had a right to stop any person without a warrant on the highway although the person was not a violator of the law, and, acting on these instructions, he ordered the appellant and her husband to stop, and they not stopping he proceeded to shoot the tires with his rifle; "I fired three shots all told," he said. When the appel (144 N.E.) lant and her husband turned and went in It appears from the testimony of the sheriff and his deputies, who are not contradicted, that the appellant and her husband were traveling in a Ford coupé along the Ocean to Ocean highway; that the sheriff and his assistants had no search warrant for any one; that they saw no evidence of the violation of any law by the appellant or her husband, and did not suspect them of any when the sheriff and his deputies, all armed, walked out in the middle of the road in front of them; that the appellant's husband, driving the car, then turned around and started to go in the opposite direction from the armed men; that he gave as a reason for turning that he thought they were highwaymen; that the armed men stationed at an old barn on the roadside, without seeking or suspecting any violation of the law, ordered them to halt, and on their failing to do so shot up and disabled their car, and then, after being joined by the sheriff, arrested them. Their only excuse for the arrest is that the appellant and her husband did not stop when ordered to do so. When the sheriff had caught up with the fleeing man and woman in their disabled Ford coupé the sheriff's deputy, Mr. Donahue, got out of the car first, and Mr. Batts, appellant's husband, said to him, "Are you the man that was shooting at me?' and Mr. Donahue said, "No; I was not shooting at you but at your tire;" and the appellant and her husband were then arrested by the sheriff. The sheriff says one or two machines went by before these persons came along. "We did not hold them up; we compelled them to stop, and just looked into the car and told them to go on." No intoxicating liquor was found in the car. There was some evidence that Mr. Batts, after his car was shot up, threw something out. Some witnesses for the state testified that they went to the place and found some wooden kegs and jugs that smelled like they had had whisky in them. This evidence was admitted over the appellant's objections that they were procured by an unlawful search and seizure of appellant's effects without any search warrant in violation of appellant's constitutional rights. If it is true that the Batts had in their car intoxicating liquor at the time of their arrest, it is also true, according to the testimony of the sheriff and his deputies, that the sheriff in accomplishing its capture violated the constitutional rights of the appellant as guaranteed by article 1, § 11, of the Constitution of Indiana (Burns' 1914, § 56); Callender v. State (Ind. Sup.) 138 N. E. 817. Article 1, § 11 (Burns' 1914, § 56), provides as follows: "The right of the people to be secure, in their persons, houses, papers, and effects, against unreasonable search or seizure shall not be violated; and 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." A similar provision is found in the United States Constitution and the Constitution of nearly every state in the Union. In Hughes v. State of Tennessee, 145 Tenn. 544, 238 S. W. 588, 20 A. L. R. 639, it was held that, where police officers arrest one on the highway without a warrant or evidence of commission of crime in their presence, evidence discovered by the search of his person and conveyance subsequently to the arrest cannot be utilized to secure his conviction. Hughes v. State, supra, finds support by analogy in Roberson v. State, 43 Fla. 156, 29 South. 535, 52 L. R. A. 751; Pickett v. State, 99 Ga. 12, 25 S. E. 608, 59 Am. St. Rep. 226; State v. Lutz, 85 W. Va. 330, 101 S. E. 434; Douglass v. State, 152 Ga. 379, 110 S. E. 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. 860, 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 (D 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. [5] A search for liquor which was unlawful when it began does not become lawful because liquor is found. United States v. Slusser, supra. [6] Evidence procured by an officer by unlawful search and seizure is not admissible against a defendant. Callender v. State (Ind. Sup.) 138 N. E. 817; Gouled v. United States, supra; Amos v. United States, supra. For error in overruling appellant's motion to quash the affidavit, the judgment must be reversed. Judgment reversed, with instructions to sustain appellant's motion to quash. PATTISON et al. v. GRANT TRUST & SAV- (Supreme Court of Indiana. May 23, 1924.) 5. Judgment 457-One alleged to have aided in fraudulently obtaining judgments, but against whom no relief was sought, held not a necessary party to cross-complaint. In an administrator's proceeding to sell real estate to pay judgment creditors, where tion to set aside the judgments for fraud, one heirs filed cross-complaint in the nature of acnot a party to any of the judgments, and who the cross-complaint alleged aided the fraud but against whom no relief was asked, was not a necessary party to the cross-complaint, in view of Burns' Ann. St. 1914, § 269. 6. Appeal and error 1061 (2)-Dismissal as to party whom amendment could not make 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. 7. Executors and administrators 338Cross-complaint, in proceeding to sell land, properly dismissed as to parties whose claims were not alleged to have been allowed against estates. In an administrator's proceeding to sell property to satisfy judgments on decedent's notes, a cross-complaint by heirs, alleging fraud in obtaining the notes and joining certain parties as buyers of some of the notes, was properly dismissed as to them, in the absence of allegations that their claims had been filed or allowed against the estate, in view of Burns' Ann. St. 1914, § 2844. 8. Appeal and error ~1011(1)—Judgment not disturbed where evidence conflicting. Under Supreme Court Rule 22, failure of appellant's brief to state points or propositions referring to, or under the heading of, certain assignments of error, waived the errors. 2. Insane persons 100-Judgment on notes in action against guardian held res judicata. As respects notes executed before maker became insane and guardian was appointed for him, judgments on the merits on the notes in actions against the guardian, in which summons for the ward was served by reading to of the guardian under Burns' Ann. St. 1914, § 318, were not merely equivalent to making allowances against guardian for amounts of the notes under section 2838, which allowances would be extinguished when guardianship was terminated, but the judgments were conclusive of the validity of the notes, precluding attack on that ground by heirs in proceeding by administrator to sell deceased maker's realty to make assets to pay the judgments. 3. Insane persons 95-Statute as to constructive notice construed; "personal service." Burns' Ann. St. 1914, § 399, prohibiting personal judgment upon constructive notice, refers to notice given under sections 320, 322, 323, and not to summons to person of unsound mind served upon the guardian of such person under section 318; such service being personal service. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Personal Service.] 4. Judgment 17(3)-Court cannot acquire jurisdiction by constructive service to render personal judgment against nonresident. A court cannot acquire jurisdiction by constructive, or substituted, service, to render a personal judgment against a nonresident, not appearing, but as to residents within the state the Legislature may authorize personal judgments upon proper substituted service. Where the evidence conflicts, the judgment the trial court will not be disturbed. Appeal from Circuit Court, Grant County; G. H. Henry, Special Judge. Proceeding by the Grant Trust & Savings Company, as administrator of the estate of James I. Hogston, deceased, and others, in which Mary A. Pattison and other heirs filed cross-complaint. Transferred from Ap pellate Court under section 1397, Burns' Ann. St. 1914. Judgment for the administrator, and cross-complainants appeal. Affirmed. Wm. H. Eichhorn, of Bluffton, and Wm. J. Houck and John A. Kersey, both of Marion, for appellants. Stricler & Messick, Van Alta & Clawson, and David M. Bell, all of Marion, for appellees. Savings Company, as administrator of the Said petition For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (144 N.E.) judgments being Richard A. Hogston, Emma lieve that said notes were valid. It is also Jaqua, and Emma Frelof Jaqua, who are alleged that said parties prevailed upon also appellees herein. The appellants are said guardian to prevent other attorneys two of the children of said decedent and employed by the appellants from appearing were made defendants to said petition to in said suits and defending the same. The sell. 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. 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 procure-trial, which contained many alleged reasons, ment of said notes. 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 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 mo tion. "(3) The court erred in striking out the interrogatories to Alfred Hogston. 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 "(4) The court erred in striking out the innotes to Thos. D. Barr and one to the Citi-terrogatories to Richard A. Hogston. zens' 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 "(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. tion of Alfred Hogston to dismiss the amend"(7) The court erred in sustaining the moed 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 amend ed cross-complaint as to himself. "(10) The court erred in overruling the motion for a new trial." |