effects, including vehicle which is used in its commission, without warrant. Appeal from Criminal Court, Marion County; Frank A. Symmes, Judge. in their persons, houses, papers, and effects, against unreasonable search or seizure" (section 11, art. 1, Ind. Const.; section 56, Burns' 1914), is a personal right of the individual whose person, house, papers, or effects are searched or seized, and a mere J. Franklin Thomas was convicted of stranger having no interest therein cannot transporting intoxicating liquor in an autosuccessfully complain of defects in the search mobile, and he appeals. Affirmed. warrant under authority of which a search was made. Walker v. State (Ind. Sup.) 142 N. E. 16, 17; Earle v. State (Ind. Sup.) 142 N. E. 405, 406; Chanosky v. State, 52 Okl. 476, 153 P. 131; United States v. Wihinier (D. C.) 284 F. 528; Remus v. United States (C. C. A.) 291 F. 501, 511. No error was committed in overruling these motions. [2] Appellant also questions the sufficiency of the evidence to sustain the finding. The testimony of Harry Thompson was sufficient, in itself, to support a finding that appellant had possession of a still intended for use and which he actually did use in the manufacture of intoxicating liquor in violation of law, and that he was therefore guilty of violating section 1, chapter 33, Acts 1923, P. 107, as charged in the affidavit, even though the testimony of the officers as to what they found when searching the house were to be disregarded. The judgment is affirmed. Evidence held to sustain conviction for transporting intoxicating liquor in an automobile. 2. Intoxicating liquors 249-Peace officer entitled to search, without warrant, car in which liquor had been placed. Where police hid in shed in which were empty liquor containers, and saw accused stop car 100 feet away, and lift container, similar to those stored in shed. out of rear of car, which he replaced and locked up on approach of officers, the latter, on arresting defendant, held entitled to search car without a warrant, without violating constitutional rights. 3. Arrest 63(4)-Peace officer may arrest without warrant on reasonable cause for belief that felony is being or has been committed. Peace officer may arrest without warrant on reasonable and probable cause for believing that felony is being or has been committed by person arrested. 4. Searches and seizures 3-Person taken in act of committing felony not immune from search without warrant. Person taken in very act of committing felony is not immune from search of person and E. E. McFerren, of Indianapolis, for appellant. U. S. Lesh, Atty. Gen., for the State. affidavit with the offense of knowingly, unEWBANK, J. Appellant was charged by lawfully, and feloniously transporting intoxicating liquor in an automobile, and was found guilty. Overruling his motion for a he insists that his motion to suppress certain new trial is assigned as error, under which evidence was improperly overruled, and that, except for the evidence thus sought to be suppressed, there was no evidence of his guilt. The motion, verified by the oath of warrant certain policemen searched an authe defendant, averred that without a search tomobile, and confiscated intoxicating liquors that were in it, for which reason the court was requested to "suppress the evidence so unlawfully obtained"; neither the liquor nor other evidence referred to being more particularly described. The bill of exceptions purports to set out the "evidence on motion to suppress the evidence" separately, as follows: That certain police officers had a complaint that some men whose names were not given were hauling liquor to a place in an alley in the city of Indianapolis where a shed was full of empty jugs and cans in which "mule" had been delivered; that they were hiding in the shed, "waiting there to see them come," when appellant and another man about 75 feet away; that the alley was a drove past and stopped in front of a house public highway; that the policemen saw appellant get out and unlock the back of the car, which was a Maxwell coupé, and raise the lid, and saw him reach down in there and raise up a 5-gallon container of alcohol; that they then ran up to appellant, and when he heard them coming he put the container back into the car and dropped the top down and locked it; that the container was a 5-gallon can, which was not transparent; that the policemen placed appellant and his companion under arrest, and then unlocked and opened the back part of the car, and in it found the 5-gallon container of alcohol, and also a gallon can, being 6 gallons altogether; that the policemen' had no search warrant, and had not seen the contents of the container before the search was made. After hearing this testimony, the trial court overruled the motion to suppress the evidence. The cause was thereupon submitted for (146 N.E.) 46 Am. St. Rep. 411; Harness v. Steele, 159 INDIANA. (No. 24242.) (Supreme Court of Indiana. March 18, 1925.) 1. Insurance 188 (2)-Defendant had burden of proving payment. trial on the issue formed by appellant's plea | 19 Am. Rep. 669; Simmons v. Vandyke, 138 of not guilty, and the following evidence Ind. 380, 382, 37 N. E. 973, 26 L. R. A. 33, was introduced, without objection or exception to any of it: That two police officers hid themselves in a shed that was full of empty jugs and cans that had contained "mule," and while they were there appellant rode down the alley past the shed in a new Maxwell coupé automobile, and stopped it, 50 or 75 feet away, "in front of a residence where there is a blind tiger"; that appellant was driving, and after stopping he got out of the car and went behind it, unlocked it, and lifted up a 5-gallon can of alcohol, and had it partly out of the car; that the man who lived in the residence was out on the front steps; that the officers were watch- S. S. KRESGE CO. v. UNION INS. CO. OF ing appellant from the shed, and ran up behind him, when "he laid the can back down in there, and locked it-it locked itself when the top fell down"; that the can contained 5 gallons of alcohol, and there was another can in the car that contained 1 gallon; that they asked him what he had in there, and he said he didn't know; that they asked him whose car it was, and he said it was not his, but belonged to a fellow on Meridian street; that the officers then placed appellant and his companion under arrest; that they told appellant to open the back part of the car, and he opened it; that at first appellant said there was nothing in the back of the car, and after it was opened and the 6 gallons of whisky was disclosed, he said that he knew nothing about it-that it did not belong to him; that he said his companion was driving the car, and, upon being asked how it happened that the companion got out first on the right-hand side, he said, "Well, if you are going to lock me up, lock me up;" and he then said that he was delivering the whisky for some one whom he did not name. In action by insurance company for premium, where defense was payment, defendant had burden of proof of payment. 2. Appeal and error 1011(1)—Finding for insurer not disturbed, where evidence was conflicting. In action by insurer for premium, defense being payment to agent of insurer, finding for insurer will not be disturbed, where evidence was conflicting. 3. Appeal and error 1010(1)—Finding as to legality of insurance contract not disturbed. In action by insurer for premium, defense being that contract sued on was made in Michigan and in violation of certain statute of that state, and therefore invalid, finding for intending to establish defense was oral and not surer will not be disturbed, where evidence given credit by trial court. Appeal from Superior Court, Marion County; Linn D. Hoy, Judge. [1, 2] This evidence sufficiently supported an inference that appellant was guilty as Action by the Union Insurance Company charged, if the evidence was properly admitted, and the only question for consideration of Indiana against the S. S. Kresge Comand decision is whether or not the policemen pany. Judgment for plaintiff, and defendant violated appellant's constitutional rights by searching the automobile under the circumGoodenough, Voorheis, Long & Ryan, of stances as stated. This question must be Detroit, Mich., and Frank C. Ayres, of Inanswered in the negative. Having informa-dianapolis, for appellant. appeals. Affirmed. tion that a felony was being committed by Chas. E. Henderson and Charles Unger, the unlawful transportation of intoxicating both of Indianapolis, for appellee. liquor to that place, and seeing appellant drive up there and start to lift out of his automobile a package that contained intoxicating liquor, like the containers stored in the shed which had contained it, the officers had sufficient ground for arresting appellant and searching the car. [3, 4] A peace officer may arrest without a warrant when he has reasonable and probable cause for believing that a felony is being or has been committed by the person arrested. Doering v. State, 49 Ind. 56, 58, 59, EWBANK, J. Appellee sued to recover a premium of $17,500 on a plate glass insurance policy, together with certain charges for indorsements by which it was made to cover additional property. The policy covered the plate glass in 15 stores in Michigan and 188 stores throughout this country in 30 other states. It was canceled three months after its renewal as to the stores in Michigan, and six months later, after this action was commenced, as to all the other property. The For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes trial court allowed credit for the time the making it and in all subsequent dealings bepolicy would have had to run after such can- tween the parties, and that, because of a cellations, and gave judgment against the statute in force in Michigan, the plaintiff dedefendant (appellant) for $13,840.59. Over-clined to let that company represent it, and ruling the motion for a new trial is assigned expressly told it that plaintiff could not have as error, under which appellant insists that an agent in Michigan; and that, if it acted the finding is not sustained by the evidence in the matter at all, it could only be as and is contrary to law. agent for appellant. There was evidence to the contrary from which (if given credit) the trial court might have inferred that said company was an agent authorized to receive and accept payment of the premium on plaintiff's behalf. But there was abundant evidence to support the finding which was made, and this court cannot disturb a finding against the party having the burden of proof because of testimony to which the trial court failed to give credit. There was undisputed evidence that the policy was issued and the agreed premium for one year paid; that at the end of that time the parties agreed that the renewal premium for another year should be $17,500; that a renewal certificate certifying that in consideration of that amount of money the plaintiff thereby continued the policy in force until a date named was issued to and accepted by defendant; that in response to notices and requests sent by defendant the plaintiff paid all losses which accrued under the policy while it continued in force; and that no part of the agreed premium of $17,500 for the second year had ever been received by plaintiff. And it is obvious that there was evidence from which the trial court might reasonably conclude that appellant owed the money for which judgment was rendered against it, if that evidence stood alone, or if all the evidence tending to prove affirmative defenses were to be disregarded. [3] Appellant also pleaded by way of an affirmative defense that the contract sued on was made in the state of Michigan, in violation of a certain statute of that state which was recited in the pleading, and because of such violation was invalid. But for reasons already stated we cannot deem this defense established, when the evidence offered to support it was oral, and was not given credit by the trial court. There was also some evidence tending to prove that, even if the Atkinson-Deacon-Elliott Company was an agent of the insured and not of the insurance company, the credit was given to the agent alone, and that the account sued on was only the debt of the agent and not to the contrary, from which the trial court [1] But appellant pleaded, by way of an affirmative defense, that it had paid the premium to the Atkinson-Deacon-Elliott Company, of Detroit, Mich., and that said com- of appellant. But there was much evidence pany was plaintiff's duly authorized agent, empowered to collect and receive the premium in its behalf; and it alleged facts as to the method of dealing between plaintiff and defendant and said company, in the negotiation of the contract of insurance, the payment of the first premium, the negotiation of the renewal contract, the custom of companies writing insurance, and what was al- MATLOCK et al. v. BLOOMINGTON WATER leged to have been done in this case, tending to establish that the company was such duly authorized agent of plaintiff, and that plaintiff had given appellant the right to discharge its liability for the premium by paying the money to said company in Detroit. As to the defense of payment pleaded by this answer, appellant had the burden of proof. Pierce v. Hower, 142 Ind. 626, 630, 42 N. E. 223; Gas Belt T. Co. v. Ward, 43 Ind. App. 537, 538, 87 N. E. 1110; Indiana Trial Evidence, § 586. [2] Much of the evidence relating to the issue of payment was oral, and there was a sharp conflict as to the relation of the Atkinson-Deacon-Elliott Company to the contract of insurance, and as to which party it represented and what authority it had. A witness for plaintiff testified that the contract of insurance was made at Indianapolis, Ind.; that the Atkinson-Deacon-Elliott Company acted as agent for appellant in CO. (No. 24697.) (Supreme Court of Indiana. March 19, 1925.) 1. Eminent domain 173-Venue statutes do not apply to eminent domain proceedings before question of damages has been reached. Under Burns' Ann. St. 1914, §§ 929-933, 936, eminent domain proceedings are summary in nature until question of damages is reached, before which point statutory provisions for change of venue do not apply. 2. Eminent domain 196-Evidence held to warrant finding of right to exercise power of eminent domain. Evidence warranting inference that water company had franchise right, and was charged with duty to supply city with water, and had franchise from county and contract with city which it would be bound to perform, and that it was actively proceeding with plans in furtherance thereof, held sufficient to warrant finding that it was entitled to exercise power of eminent domain under Burns' Ann. St. 1914, §§ (146 N.E.) 5123, 5124 (Acts 1889, p. 195, §§ 1, 2, as amended by Acts 1895, p. 243, § 1), and Burns' Ann. St. Supp. 1921, §§ 10052d5, 10052e5 (Acts 1921, p. 216, §§ 1, 2). 3 Eminent domain 171-That water company's plant not in operation held not to prevent its exercise of power of eminent domain. That plant of water company seeking to exercise power of eminent domain was not yet built and in operation held not to prevent exercise of such power to appropriate lands on which to construct plant. 4. Eminent domain 28-That water company would likely sell water directly to city or lease its plant to city held not to render it less a public utility. That water company seeking to exercise power of eminent domain would probably furnish water to city by selling it to city for distribution through municipal water plant or by leasing its waterworks to city held not to show company any less a public utility entitled to exercise power of eminent domain. 5. Eminent domain 262(4)-Trial court's judgment for petitioner supported by evidence will not be set aside. Where there is evidence to support trial court's judgment in favor of petitioner in eminent domain proceedings, reviewing court is not justified in setting aside such judgment merely because there may be evidence tending to show intent to devote property to private use. der, appointing appraisers to assess the value of such lands and the damages to appellant's remaining lands by reason of such appropriation, when appellants again excepted, and perfected an appeal from that order. Overruling the motion for a change of venue from the county is first assigned as error. The statute under which this proceeding was begun and prosecuted consists of 12 sections, of which the first 4 relate to a preliminary attempt that must be made to purchase the property, to the facts that must be stated in the petition, and to the notice to be given and how it shall be served, and provide that the court or judge in vacation shall take action thereon, "being satisfied of the regularity of the proceedings and the right of the plaintiff to exercise the power of eminent domain for the use sought." Sections 929-932, Burns' 1914 (sections 1-4, c. 48, p. 59, Acts 1905). The next section reads as follows (our italics): "Any defendant may object to such proceedings on the ground that the court has no jurisdiction either of the subject matter or of the person, or that the plaintiff has no right to exercise the power of eminent domain, for the use sought, or for any other reason disclosed in the complaint or set up in such objections. Such objections shall be in writing, separately stated and numbered, and shall be filed not later than the first appearance of such defendant; and no pleadings other than the complaint and such statement of objections Appeal from Circuit Court, Monroe Coun- shall be allowed in such cause, except the anty; H. A. Rundell, Judge. Eminent domain proceeding by the Bloomington Water Company, wherein objections were filed by Charles Matlock and others. From an order appointing appraisers, objectors appeal. Affirmed. S. C. Kivett, of Martinsville, for appellants. J. F. Regester and Miers & Corr, all of Bloomington, for appellee. swer provided for in section 8 of this act: Provided, That amendments to pleadings may be made upon leave of court. If any such objection shall be sustained, the plaintiff may amend his complaint or may appeal to the supreme or appellate court from such decision, as and in the manner that appeals are taken from final judgments in civil actions, of which appeal all the parties shall take notice and by which they shall be bound. But if such objections are overruled the court, or judge, shall appoint appraisers as provided for in this act; and from such interlocutory order overruling such objections and appointing appraisers such defendants, or any of them, may appeal to the supreme or appellate court from such decisions as and in the manner that appeals are taken from final judgments in civil actions, upon filing with the clerk of such court a bond with with sufficient surety, payable to the plaintiff, such penalty as the court, or judge, shall fix, conditioned for the diligent prosecution of such appeal and for the payment of the judgment and costs which may be affirmed and adjudged against the appellants. Such appeal bond shall be filed within ten days after the appointment of such appraisers. All the parties shall take The notice of and be bound by such appeal. transcript shall be filed in the office of the clerk of the supreme court within 30 days after the filing of the appeal bond. Such appeal shall not stay proceedings in such cause." Section 933, Burns' 1914 (section 5, c. 48, p. EWBANK, J. Appellee brought an action to appropriate certain lands for the alleged purpose of building thereon a dam, a basin in which to impound water, a power plant, and certain pipe lines and water mains, and obtaining therefrom materials for the construction of its purposed waterworks. Ap pellants filed twelve objections, some of which were subdivided. Appellee filed a motion to strike out each of these objections, and appellants filed a motion for a change of venue from the county, but it was overruled, and they excepted. The trial court sustained the motion to strike out six of the objections, and appellants excepted. Evidence was then heard, after which the court overruled the other six objections and made a finding that plaintiff was entitled to appropriate the lands in question, and entered an interlocutory or- 59, Acts 1905). Other sections of the act For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes provide for the assessment of benefits and mitted in overruling the motion for a change damages by the appraisers, give the plaintiff of venue from the county. a right to take possession on payment of the The petitioner (appellee) introduced evidamages so assessed, provide for taking ex-dence to the effect that it was incorporated ceptions to the assessment made by the ap- under the laws of the state of Indiana "to praisers, and provide for a forfeiture of the own, construct, operate, maintain and lease rights acquired by proceedings under the a waterworks plant and system for the purstatute in case the damages as finally de- pose of supplying the city of Bloomington, termined shall not be paid and the land tak- Monroe county, Indiana, and vicinity, and en possession of and devoted to the purpose the inhabitants thereof, with water, and to for which it was appropriated within a limit- transact any business incident thereto"; ed time, as thereby fixed. Section 8 provides that on petition to the Public Service Comthat: mission, in a proceeding to which appellant "Any party to such action aggrieved by the appeared as a respondent, the Commission assessment of benefits or damages, may file had made a finding that appellant was a written exceptions thereto * * within 10 public utility, within the meaning of chapter days after the filing of such report, and the 98, p. 216, Acts 1921, and that public convencause shall further proceed to issue, trial and ience, economy, and necessity required the apjudgment as in civil actions; the court may propriation and condemnation of appellant's make such further orders, and render such find-lands "for the construction and maintenance ings and judgments as may seem just. Such judgment as to benefits or damages shall be of a dam and reservoir at said location": appealable by either party as in civil actions to that appellee had a contract agreement with the appellate or supreme court." Section 936, the city of Bloomington, duly ratified by a Burns' 1914, supra. city ordinance, by which it undertook to construct a dam for impounding water in the [1] These provisions of the statute obvi- valley in which appellants' lands are situated, ously contemplate a summary proceeding, in to construct and fully equip a pumping station which a jury can take no part and the ter- in connection therewith, and a pipe line to a ritorial location of the court can make no designated point in the city of Bloomington, possible difference, until the point is reached and to furnish and supply to said city a minof trying the question of damages. Upon this imum of 650,000,000 gallons of water per question "the cause shall proceed to issue, year during a period of 25 years, with as trial and judgment as in civil actions," and many additional gallons as the city may rea change of venue from the county and a quire, up to the capacity of the plant, at a trial by a jury of the county to which the designated price, the water to be delivered in cause is transferred may be had. Clinton the mains of the waterworks, operated by the Coal Co. v. Chicago R. Co., 190 Ind. 465, 469, city, and for the purpose of laying and con130 N. E. 798; Chicago, etc., R. Co. v. Wysor structing its line to connect with such mains Land Co., 163 Ind. 288, 290, 69 N. E. 546. But appellee was granted a franchise to lay pipes the statute does not provide that issues shall in four designated streets in the city for a be made up or the cause tried as in civil ac- distance named, "and such other streets and tions in the preliminary stage of satisfying alleys as shall be mutually agreed upon"; the court or judge of the regularity of the that appellee had obtained from the Public proceeding, and the right of plaintiff to ex- Service Commission authority to issue and ercise the power of eminent domain for the sell $150,900 of its common capital stock, use sought, Section 932, supra. On the con- and $300,000 of its preferred stock, and that trary, it expressly provides that there shall the city of Bloomington had subscribed for be no pleadings except the petition and ex- $150,000 of such common capital stock, to ceptions thereto, which must be filed "not be paid for as soon as the city could issue. later than the first appearance of such de- and sell its bonds for that purpose, and such fendant," for the appointment of appraisers subscription had been ratified by a city ordiimmediately, "if such objections are over-nance; that each of the nine directors had ruled," and for an appeal from such order subscribed and paid for a share of the stock; within 10 days after their appointment, but that appellee and a firm of contractors had that "such appeal shall not stay proceedings entered into a contract for the construction in such cause." Section 933, supra. This of a dam, reservoir, pumping station, and apcontemplates a summary proceeding incon- purtenances, and pipe lines to the city of sistent with the general provisions of the Bloomington, and the contractors had executCivil Code, to which the provisions authorized a bond conditioned for the performance ing a change of venue from the county do not apply. Appellants did not ask for a change of judge, and no question is before us as to whether or not they could have procured the appointment of a special judge under section 422a, Burns' 1914 (section 1, c. of the contract, and that appellee, in a proceeding resisted by appellants, had obtained from the board of commissioners of Monroe county, Ind., a franchise right to lay its mains, conduits, and pipes over, across. and along the highways between the site of |