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record showed the facts to be as appellant contends, he waived any objection he might have had to appearing before the time fixed in said recognizance.

[2] The next point suggested by appellant

"The jury, after due deliberation, returns into open court the following verdict, to wit: (Here is inserted the verdict.) And the court now asks all of the jurors whether their verassent and no juror dissents from said verdict." dict is their verdict, to which all the jurors

and discussed in his brief is that the court erred in not requiring the witness Herbert Sullivan to answer certain questions on cross-statute (section 2142, Burns' 1914), to have examination. The specific assignment in his

motion for a new trial is:

"That the court erred in not compelling the state witness Herbert Sullivan to answer questions propounded by the defendant's counsel." This specification is too indefinite and uncertain to direct the court's attention to any specific ruling of the court and raises no question. Conrad v. Hansen (1908) 171 Ind. 43, 85 N. E. 710, and cases cited.

[3] Another point urged by appellant is that the court erred in refusing to strike out the testimony of the witness Herbert Sullivan, a police officer. This witness had testified, on behalf of the state, that the reputation of appellant for morality was bad. On cross-examination he was asked how he knew

The appellant had the right, under the the jury polled. This right is given him so that it may be ascertained whether the verdict returned is assented to by all the jurors. A failure to exercise this right before the jury is discharged is deemed a waiver of such privilege. Short v. State (1878) 63 Ind. 376. Appellant having failed to poll the jury, and the record showing that the verdict was duly returned, he cannot afterwards contradict the record in this regard.

Finding no reversible error in the record the judgment is affirmed.

TUTSBREE v. STATE. (No. 24558.)

Criminal law 1144(18) In passing on refusal of new trial, evidence sustaining verdict accepted as true.

that. and he answered that he knew it by (Supreme Court of Indiana. Nov. 13, 1924.) hearsay. He further answered that the neigh-I. bors told him. He at first refused to tell who they were, stating that complaints had been made to him as a police officer, which were made in confidence, but finally gave the name of one family that had made complaint.

Although it was proper to inquire as to the source of the witness' information in this regard, yet, since the extent of a cross-examination is largely in the discretion of the trial court, and in view of the extent to which it was permitted in this case, we cannot say that the court abused its discretion, so as to compel a reversal.

In passing on order overruling motion for new trial, court must accept as true the evidence and inferences which may be reasonably drawn therefrom, that tend to sustain verdict, and reject as untrue all evidence and inferences to contrary.

2. Criminal law 371(10)-Evidence of accused's recent conviction of selling intoxicating liquor held admissible on question of intent.

On question of intent, with which accused had possession of partly filled bottle of whisky on table at which he was found with visitor, evidence of accused's recent conviction of unlawful selling of intoxicating liquor was proper

[4] As to appellant's objection that the court refused to order a special venire drawn from the jury box and ordered the sheriff to summon 15 persons in addition to the reg-ly considered. ular panel, it does not appear from the rec-3. Criminal law 371 (10) That defendant ord that any jurors, other than the regular has recently committed offenses of similar panel, were summoned or attended, nor that character is competent evidence when Intent appellant exercised any of his peremptory to commit certain offense is directly in issue. challenges. From aught that appears he was When criminality of defendant's act detried by the regular panel for the term. It pends on intent with which done, fact that he not appearing that the substantial rights of has committed offenses of that character reappellant were affected by the action com-cently, in past, is competent evidence to prove plained of, he cannot claim a reversal. Thain intent at time in question. v. State (1914) 182 Ind. 345, 106 N. E. 690. Furthermore, the determination as to whether there shall be a special venire drawn or talesman summoned by the sheriff is a matter left to the sound legal discretion of the court. Sections 557, 1669, 2098, 2103, Burns' 1914; Harlan v. State, 190 Ind. 322, 130 N.

E. 413.

[5] As to appellant's contention that the verdict returned was not the unanimous verdict of the jury, the record on this point is as follows:

4. Intoxicating liquors 236 (7, 19) — Evidence held to sustain conviction of selling intoxicating liquor.

Evidence that in house where defendant and companion were arrested were found 15 or 18 mash, and two stills in operation, making whisgallons of white mule whisky, 21 barrels of ky, held to sustain conviction of unlawfully manufacturing and possessing intoxicating liquor, with intent to sell, barter, etc.

Appeal from Circuit Court, Cass County; Paul M. Souder, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(145 N.E.)

Rabb, Mahoney & Fansler, of Logansport, for appellant.

U. S. Lesh, Atty. Gen., and O. S. Boling, of Indianapolis, for the State.

Oliver Tutsbree was convicted of manufac- | 15 or 18 gallons of intoxicating liquor was turing and possessing intoxicating liquor, found on the premises including the bottle on with intent to sell, barter, etc., and he ap- the table that was almost full, and after peals. Affirmed. saying to the arresting officer that he would like to have a drink, and being given permission, appellant drank from the bottle; that one Wilkins, who was also in the house when the officers entered, jumped out of the window from the other room, but was overtaken and brought back, when he said in the presence of appellant that a third man also found there did not belong there, but had a camp down the river, but nothing was said as to appellant not belonging there, or only being there to fish. There was only one bed in the house, but appellant testified that he had slept on the floor the night before. There was a Ford automobile in the yard, but appellant told the officers that it was not running, that he could not get it started. Appellant had been convicted in the city court of Logansport on the charge of selling intoxicating liquor 5 months before.

EWBANK, J. Appellant was tried upon an issue joined by his plea of not guilty to an affidavit of three counts. The first count charged that he unlawfully manufactured intoxicating liquor; the second charged that he unlawfully possessed a certain still; and the third that on the 13th day of December, 1922, he had in his possession intoxicating liquor, with intent to sell, barter, exchange, give away, furnish, and otherwise dispose of the same to persons unknown within this state. The jury returned a verdict, finding him guilty on the first and third counts, and imposed a fine and imprisonment for each offense. Overruling the motion for a new trial is the only error assigned, under which appellant complains that the verdict is not sustained by sufficient evidence, and is contrary to law.

[1] In passing on such a motion we must accept as true the evidence and the inferences which reasonably may be drawn from the evidence, that tend to sustain the verdict, and reject as untrue all evidence and inferences to the contrary. Lee v. State, 191 Ind. 515, 132 N. E. 582; Hall v. State (Ind. Sup.) 139 N. E. 588; Jackson v. State (Ind. Sup.) 143 N. E. 625.

There was evidence that, on the day the offenses were alleged to have been committed, certain police officers, certain federal prohibition officers, and the sheriff, with a search warrant, went into a house having two rooms and only two windows, which a witness referred to as an "old shack," that stood down by the river, four miles from Logansport, near a quarry, and in the first room they entered found appellant beside a table, with a man, from a fishing camp not far away, and a woman also, at the table, and a bottle nearly full of intoxicating liquor upon it; that appellant sprang to his feet as the officers entered; that in the room where he was a still was in operation with a fire under it, and 15 or 20 feet away through an open door in the other room, another still was also in operation, both making whisky; that appellant had on a suit of old clothes, and after his arrest changed them for a fairly good suit of clothes that he had there in the house; that 21 barrels of "mash," consisting of ground corn, sugar, and yeast, were found in the cellar, each barrel holding 50 gallons, and

[2] The evidence that appellant recently in the past had been convicted of selling intoxicating liquor in violation of law might be taken into consideration on the question of the intent with which he had possession of the partly filled bottle of whisky on the table at which he was found, with the visitor from a fishing camp. Levy v. State, 12 Okl. Cr. 441, 158 P. 288; Urban v. Commonwealth, 196 Ky. 775, 245 S. W. 852; State v. Horowich, 121 Me. 210, 116 A. 266; O'Toole, 118 Me. 314, 108 A. 99; State v. Hessel, 112 Wash. 53, 191 P. 637; State v. Stanley, 38 N. D. 311, 164 N. W. 702.

State v.

[3] Where the criminality of an act done by the defendant depends upon the intent with which it was done, so that his intent to commit a certain kind of public offense, as charged, is directly in issue, the fact that he has committed offenses of that character recently in the past is competent evidence to prove his intent at the time in question. Crum v. State, 148 Ind. 401, 412, 47 N. E. 833; Higgins v. State, 157 Ind. 57, 60, 60 N. E. 685; Eacock v. State, 169 Ind. 488, 492, 82 N. E. 1039.

[4] Since the evidence proved without dispute that in the house where appellant and his companion were arrested were found 15 or 18 gallons of white mule whisky, 21 barrels of "mash," and two stills in operation, making whisky, the jury had sufficient basis for an inference that he intended to sell and dispose of the whisky in violation of law, if convinced that he had it in his possession.

The evidence was sufficient to prove appellant's guilt, and his motion for a new trial was properly overruled.

The judgment is affirmed.

WILLOUGHBY, J., absent.

HART v. STATE.

(Supreme Court of Indiana.

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(No. 24573.)

Nov. 19, 1924.)

1. Homicide 257 (1)—Evidence held insufficient to support verdict of guilty of shooting and wounding with intent to kill and murder.

In prosecution for shooting at and wounding police officer with intent to kill and murder, evidence that police officers, in attempting to arrest accused, were committing trespass in violent, noisy manner outside room of accused, who feared that he would be beaten by strikers, held insufficient to support verdict of guilty. 2. Homicide Fact that woman was

found in accused's bed by police officers held not to give authority to arrest without warrant.

In prosecution for shooting and wounding policeman with intent to kill and murder, under Burns' Ann. St. 1914, § 8782 (Acts 1905, c. 129, § 161) and section 9549, subd. 5 (R. S. 1881, § 5976, subd. 5), evidence that woman who occupied room next to accused's was in his room, asleep in his bed, when officers entered her room immediately before shooting, gave them no authority to arrest accused without warrant; no misdemeanor having been committed in their view.

3. Arrest ~63(4)

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Searches and seizures 3-Search without warrant not justified by suspicions.

Under Const. art. 1, § 11, police officers have no authority to break into and search private rooms without warrant, to discover evidence that misdemeanor has been, or is being, committed, or to arrest person suspected of committing one.

Appeal from Circuit Court, Cass County; Earl B. Stroup, Judge.

Arthur Hart was convicted of shooting and wounding with intent to kill and murder, and he appeals. Reversed, with direc

tions.

Rabb, Mahoney & Fansler, of Logansport, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward F. White, Deputy Atty. Gen., for the State.

EWBANK, J. [1] Appellant was charged by indictment with the offense of feloniously shooting at and wounding Gola Thomason, with intent thereby to kill and murder him. Being tried by the court without a jury and found guilty, he was sentenced to imprisonment for not less than 2, nor more than 14, years. Overruling the motion for a new trial is the only error assigned, under which appellant insists that the verdict is not sustained by sufficient evidence, and is contrary to law. The evidence that tended most strongly to prove his guilt was as follows:

That at about 1 o'clock in the night three policemen knocked on the door that opened

from the room appellant was occupying into the hall of his boarding house, and called out that they were officers, and for him to open the door; that the door of the room next to his was a few feet from it, and one of the officers put his foot and shoulder against that door and forced it open, and two of the policemen entered that room, which was empty, and put a key in the lock of the door between that room and the one appellant was occupying, and unlocked the door and pushed on it, but the door was also bolted and did not open; that they then "hammered" on that door and called out for appellant to open it; that the officers were there, that the third policeman had remained at the door which led from appellant's room into the hall, and, while making no noise, was turning the knob of that door, when a pistol shot from a gun that appellant held in his hand came through the door and struck him in the side inflicting a slight wound.

But the witnesses for the state (all police officers) gave further testimony, which was wholly uncontradicted, to the effect that there was a Yale "night latch" a few inches above the doorknob on the door through' which the bullet passed; that the bullet hole on the inside of the door was about 8 inches from the edge of the door, near, and a

little to the right of, the Yale lock (but witnesses did not agree whether just above or just below a point even with that lock), and there was a blackened spot around the hole, as if from burnt powder; that the bullet hole went through the panel of the door at an acute angle of about 30 degrees-nearer straight with the plane of the door than 45 degrees and one of the two unwounded policemen then fired a pistol shot through the door between the two rooms, and the other fired a shot in the hall; that, when a policeman, whose voice appellant recognized, came to the room and told appellant to open the door, he did so, and was found in his nightgown, and his pistol was found lying on the dresser; that he quietly submitted to arrest; that appellant had been working as a "strikebreaker" in a shop a few squares away, and many of the men so working had been beaten and injured by persons who attacked them on their way to or from work or at their homes; and that, when arrested, appellant said he had thought it was some of the strikers outside his door who had come to beat him, and was frightened, and that his gun went off accidentally when he was trying to open the door with the gun in his hand by turning both latches at once. No evidence was offered tending to prove that appellant knew anybody was outside his door in the hall when the gun went off, or to the effect that the officers had a warrant for the arrest of appellant, or authoriz ing them to search his room or any part of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(145 N.E.)

if they were, it affirmatively appears that they were not committing that misdemeanor in view of the police officers.

the boarding house, or that they told him | 187 Ind. 76, 118 N. E. 354; Tribbey v. State, they had a warrant, or that appellant had 189 Ind. 205, 208, 126 N. E. 482. And, even been guilty of a felony, and had fled with them in pursuit, or had been reported to be then committing one, or that the officers even suspected him of being guilty of a felony; while appellant testified, without contradiction, that no warrant was served on him. that he was not told they had a warrant, and that he had not been guilty of a felony, and was not accused of having committed one.

And appellant also testified, without contradiction, that he did not hear anybody at the door leading from his room into the hall, but had been asleep until he was awakened by the forcible opening of the door into the next room; that he did not understand what the men in that room were saying, but when he heard them at the door between the two rooms he thought it was somebody who had come to beat him up; that every evening when he came from work he had been followed by strikers threatening to "get" him, and every night or two they were beating up some one, and one night some fellow was thrown off the Sixth street bridge, and somebody was shot at; that appellant had been working from 6 a. m. until 6 p. m. at the shop, and putting into the bank all the wages received for that work, and then working until 10 or 12 o'clock at night cleaning rooms, by which work he earned the money on which he lived; that when he heard somebody at the door between the two rooms he got out of bed, and, without putting on his clothes, took his pistol in his hand and attempted to open the other door, which led into the hall, so that he might go around behind the people in the other room, and "see who was in the next room, and would have a chance to fight it out with them," and was "going to protect myself"; that with the gun in one hand he tried to turn the night latch with that hand while he took hold of the doorknob with the other, when the gun was accidentally discharged; that only one shot was fired, and he did not mean to fire that shot; that immediately afterward a shot was fired from outside through the other door, and he went and hid behind the stove until the policeman, whose voice he knew, came to the door and told him to open it.

[2] There was evidence that the woman who rented and occupied the room, next to his, into which the officers forced their way, was in appellant's room, asleep in his bed, when the officers entered her room, and that she hid behind the dresser and was found hiding there, in her nightclothes, when the officers were finally admitted. But there was no evidence of facts showing that either appellant or she was guilty of a misdemeanor in doing what they did. Jackson v. State, 116 Ind. 464, 19 N. E. 330; Powell v. State,

[3] While the authority of such officers to arrest for a misdemeanor without a warrant only extends to making arrests when the misdemeanor is committed within their view (section 9549, subd. 5, Burns' 1914; section 5976, subd. 5, R. S. 1881; section 8782, Burns' 1914; section 161, c. 129; Acts 1905, p. 339; Doering v. State, 49 Ind. 56, 19 Am. Rep. 669; Plummer v. State, 135 Ind. 308, 312, 34 N. E. 968; Ewbank, Indiana Crim. Law, § 110) and they have no authority to break into and search private rooms without a warrant, for the mere purpose of discovering evidence that a misdemeanor has been, or is being, committed, or of arresting a person suspected of committing one (section 11, art. 1, Const. of Ind.; section 56, Burns' 1914; section 56, R. S. 1881) the undisputed evidence shows that the police officers were committing a trespass in a violent and noisy manner, and that appellant had reason to and did fear that he would be beaten and injured because of the nature of his employment; and it fails to show or to justify an inference that he knew, or had reason to believe, that the injured man was out in the hall at a place and in a position so that a bullet passing through the door at an angle of 30 degrees would strike him.

The evidence is not sufficient, and the verdict is therefore contrary to law.

The judgment is reversed, with directions to sustain appellant's motion for a new trial.

ROOKER et al. v. FIDELITY TRUST CO. (No. 24366.)

(Supreme Court of Indiana. Nov. 12, 1924.) I. Assistance, writ of 8-No question determined by original decree can be litigated on application for.

enforce compliance with former decree, no question determined by original decree can be litigated.

On application for a writ of assistance to

2. Assistance, writ of 8-Only question on application for writ is whether decree sought to be enforced has been complied with.

assistance is whether decree sought to be enOnly question on application for writ of forced has been complied with, and defendant cannot, in defense thereto, renew contest as to title or right of possession which has already been settled.

3. Assistance, writ of 1, 8-Jury

19(1)

-Parties not entitled to jury trial nor te special finding of facts.

"Writ of assistance" is a summary interlocutory proceeding by which a court of equity will enforce its decree determining title or

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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GAUSE, J. This appeal is from an order of the court below directing the issuance of a writ of assistance to enforce compliance with a former judgment of that court, which judgment was affirmed by this court in Rooker v. Fidelity Trust Co. (1921) 191 Ind. 141, 131 N. E. 769.

The judgment referred to adjudged that the appellee was the holder of the legal title to certain real estate therein described, a part of which is located in Hamilton county, Ind.; that said appellee held said fand as trustee by virtue of certain deeds and trust agreement executed by appellants; that appellants had parted with the right to the possession and the rents and profits of said real estate by virtue of said deeds and trust agreement, and that the only interest appellants had in said land was an interest in the proceeds of the sale thereof contingent upon said land, selling for a sum in excess of certain sums specified in said judgment, and appellants were enjoined from interfering with appellee's right to possession, rents, and profits, etc.

The special finding of the court, its conclusions of law, and the judgment are fully set out in the opinion in said former appeal. After the judgment was affirmed by this court, and the same certified to the lower court, the appellee filed its petition, setting

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up that appellants had failed and refused to comply with the same, but were in possession of the dwelling house and appurtenances on said land, to the exclusion of the appellee, and were interfering with the rights of the appellee to the crops raised on said lands, and were denying the right of the appellee to the possession thereof, and the appellee asked that a writ of assistance be awarded to put the appellee in possession of said lands and appurtenances, and to oust appellants therefrom.

The action in which this judgment was rendered was commenced by appellants about 12 years ago, and there have been numerous appeals to this court, as well as applications to the federal courts, by appellants. See Rooker v. Fidelity Trust Co. (1916) 185 Ind. 172, 109 N. E. 766; Rooker v Fidelity Trust Co. (1923 Ind. Sup.) 141 N. E. 4; Rooker v. Fidelity Trust Co. (1921) 191 Ind. 141, 131 N. E. 796; Rooker v. Fidelity Trust Co. (1923) 263 U. S. 413, 44 S. Ct. 149, 68 L. Ed. 362.

In the proceedings noted above, most of the contentions appellants make in this appeal were raised and decided adversely to them. The judgment which it is sought to enforce by the writ applied for in this proceeding was rendered upon a counterclaim filed by the appellee. This court held in the former appeal, reported in 191 Ind. 141, 131 N. E. 769, that the subject-matter of the counterclaim was a proper matter to be presented, and adjudicated by a counterclaim in said action; that is, that the court had jurisdiction of the subject-matter. There is no contention but that the court had jurisdiction of the person of appellants.

Appellants have had their day (in fact many days) in a court that had jurisdiction of the subject-matter, and of the person of appellants. The special finding and conclusions of law were within the issues raised on said counterclaim, and, as was said by this court on the former appeal (191 Ind. 141, 131 N. E. 769):

"The judgment rendered in this case was in conformity with the conclusions of law."

Appellants surely are not serious in contending that they have been deprived of due process of law or denied the equal protection of the law, in the rendition of such judgment.

[1] The rights of the parties have been fully adjudicated by the former proceedings. and appellants, according to the application for a writ of assistance, and the evidence submitted thereon, have refused to comply with the decree fixing the right of possession of the real estate in appellee. Upon such an application no question determined by the original decree can be litigated.

[2] The only question on the application for a writ of assistance is whether the de-

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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