Wishmire v. State
Wishmire v. State
Opinion of the Court
Appellant was convicted in the criminal court of Marion county of transporting intoxicating liquor in an automobile. The indictment was based on ch. 34 of the acts of 1923, Acts 1923 p. 108.
The only assignment of error before this court is that the trial court erred in overruling appellant’s motion for a new trial. When the assignment of errors was filed, the appellant claimed that the court erred in overruling his motion in arrest of judgment; but in his reply brief, it is admitted that said motion having been filed after judgment, the ruling thereon presents no question for review.
The motion for a new trial sets out the following causes: “(1) That the court erred in overruling defendant’s motion to suppress the evidence; (2) that the finding of the court is contrary to law; (3) that the finding of the court is not sustained by sufficient evidence.”
*107 *106 The motion to suppress certain evidence states that on September 22, 1923, a deputy sheriff of Marion county and another officer stopped defendant who was driving an automobile near Maywood in said county and unlawfully and without warrant and authority and over defendant’s objection searched the car and seized five gallons of alcohol, five gallons of white mule whisky and five gallons of water, and that the prosecuting attorney of said county was proposing to use said described property, unlawfully seized and held, at *107 defendant’s trial, and that by reason thereof, defendant’s rights had been and would be violated unless the court would suppress said evidence. The prayer of the motion was that the court suppress said evidence as it was unlawfully and unreasonably obtained. The motion was overruled and exception taken. A party seeking the reversal of a judgment has the burden of showing that his substantial rights were prejudiced by the errors complained of. It is not enough merely to show that errors were committed. Unless the record of an appeal in a criminal case shows that an error complained of was injurious to the defendant, it may be regarded as harmless. Ewbank, Manual of Practice (2d ed.) 254. The property described in the motion to suppress was not introduced in evidence upon the trial; and therefore, appellant was not harmed by said ruling. It is not necessary for us to decide if the ruling on said motion was correct or erroneous.
Appellant claims that the transportation of intoxicating liquor by him was for his own use, and therefore, not unlawful for the reason that such transportation was not prohibited by existing law. This claim was based on the proviso of said chapter 84, which reads as follows: “That nothing herein contained shall affect the transportation of intoxicating liquor for such purposes or uses as are not prohibited by existing law.” The deputy sheriff who made the arrest testified in regard to the automobile which appellant was driving, saying that he knew it was a bootlegger’s car, that he had the license number of several cars and had been looking for that car for two months. The evidence was such as to warrant the trial court in deciding that the transportation of intoxicating liquor by appellant did not come under said proviso.
The finding of the court was sustained by sufficient evidence and was not contrary to law.
The judgment is affirmed.
Reference
- Full Case Name
- Wishmire v. State of Indiana.
- Cited By
- 4 cases
- Status
- Published