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Docket Number

No. 26,591.

Attorney(S)

Widaman Widaman and L.W. Royse, for appellant. Seth E. Rowdabaugh, Philip Lutz, Jr., Attorney-General, and Caleb J. Lindsey, Assistant Attorney-General, for the State.

Judges

TREMAIN, J.

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Smart Summary

Summary of Opinion: George v. State of Indiana (No. 26,591)

Court: Supreme Court of Indiana. Filed May 1, 1936; rehearing denied November 16, 1936.

Lower court: Kosciusko Circuit Court (Judge Donald Vanderveer). Appellant: Forrest George. Charge: petit larceny.

Factual and Procedural Background

The appellant, Forrest George, was charged by affidavit with petit larceny for allegedly taking one platform binder canvas, the property of Grimm, valued at $5.00. He was tried before a jury in the Kosciusko Circuit Court and convicted. The appellant appealed to the Supreme Court of Indiana, assigning as the only error relied upon the overruling of his motion for a new trial. In his brief he specifically challenged the trial court's admission into evidence of a search warrant (issued by Justice of the Peace Frank Leas) together with the supporting affidavit and the sheriff's return. The State introduced the search warrant, the affidavit supporting it, and the sheriff's return at trial; there was no assignment challenging the sufficiency of the verdict or asserting the verdict was contrary to law. The Supreme Court affirmed the conviction.

Legal Issues Presented

Whether the trial court erred in admitting into evidence and permitting the jury to hear a search warrant and its supporting affidavit issued in ex parte proceedings.
Whether the admission of the search warrant and affidavit violated the appellant's constitutional right to "meet the witnesses against him face to face," insofar as the affidavit contained statements by a complaining witness made in the absence of the defendant and without cross-examination.

Arguments of the Parties

Appellant's Arguments

The search warrant and its supporting affidavit were obtained in ex parte proceedings to which the appellant was not a party; admitting them before the jury was improper.
The affidavit contained hearsay statements by the complaining witness and other factual assertions not subject to cross-examination, thereby invading the appellant's constitutional right to confront the witnesses against him (to "meet the witnesses against him face to face").
The appellant relied solely on the confrontation and hearsay objection; he did not challenge the technical sufficiency of the warrant (e.g., probable cause, description of premises) in his brief or the record.

The opinion does not set out a detailed, adversarial presentation of the State's legal arguments beyond the procedural fact that the State introduced the warrant, affidavit, and sheriff's return into evidence.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court's analysis proceeds from the appellant's sole objection: that the search warrant, together with the supporting affidavit and sheriff's return, was inadmissible because it contained ex parte statements and thereby violated the appellant's right of confrontation.

The court first observed that the appellant did not challenge the warrant on any ground going to its technical sufficiency — for example, he did not object that probable cause was not shown or that the premises were not properly described. The only objection made and argued was that the affidavit amounted to hearsay and deprived the appellant of the opportunity to cross-examine the maker.

The court noted the procedural posture of the record: the prosecuting attorney offered and introduced the search warrant, the affidavit, and the sheriff's return; the appellant objected on the stated confrontation/hearsay ground; however, the record and brief contained no reference to the instructions given the jury at trial. In particular, the appellant made no point about how the jury was instructed regarding the limited purpose for which the warrant and affidavit could be considered.

The court explained the legal function of the affidavit supporting a search warrant: it was made solely to demonstrate probable cause for issuance of the warrant and was not intended, nor could it properly be used, as proof of the defendant's guilt. From that legal principle the court reasoned that if any part of the search warrant and the papers incident to it were admissible under the objection presented, then the whole of them were admissible. The court also invoked the presumption of regularity: in the absence of a record showing otherwise (and without any assignment or citation to jury instructions), the appellate court would presume that the trial court properly limited the jury's consideration of the warrant, affidavit, and sheriff's return by appropriate instructions.

The court further observed that evidence of items found as a result of the search (here, the platform binder canvas) is admissible only after the search warrant has been properly introduced; the State had introduced the warrant and related papers before offering the found item. Finally, the court noted that there was ample evidence in the record to support the conviction apart from any contested use of the affidavit.

On these bases — that the affidavit's purpose was to show probable cause, that no sufficiency objection or record of improper jury instruction was presented, and that the trial court's regularity would be presumed on appeal — the court concluded there was no reversible error in admitting the warrant and related papers.

Holding and Implications

Holding: The judgment of the Kosciusko Circuit Court convicting Forrest George of petit larceny was affirmed.

Implications:

The direct consequence is that the appellant's conviction and sentence were upheld by the Supreme Court of Indiana.
The court's decision rests on two principal points stated in the opinion: (1) the affidavit supporting a search warrant is intended to show probable cause for issuing the warrant and is not admissible as proof of guilt; and (2) absent a record showing improper jury instructions or other procedural irregularity, appellate courts will presume the trial court properly limited the jury's consideration of such materials. The opinion does not announce or discuss any new legal precedent beyond application of these principles to the record before it.

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GEORGE v. STATE OF INDIANA.

1. CRIMINAL LAW — Trial — Evidence — Admissibility — Affidavit for Search Warrant. — Search warrant including supporting affidavit held not inadmissible on ground it invaded constitutional right to confront the witness who signed the affidavit, it being made for the sole purpose of showing probable cause for the search and not as proof of defendant's guilt. p. 593.

2. CRIMINAL LAW — Appeal — Review — Presumptions — Matters Not Shown by Record — Instructions. — Where a search warrant, supporting affidavit, and sheriff's return thereto were admitted in evidence, it would be presumed, in the absence of the instructions, that their consideration was properly limited by instructions. p. 593.

TREMAIN, J.

The appellant was charged by affidavit of the crime of petit larceny. It is charged that he did unlawfully and feloniously take, steal, and carry away one platform binder canvas, the property of one Grimm, of the value of $5.00. He was tried before a jury and convicted.

On appeal to this court he assigns as the only error relied upon, the overruling of his motion for a new trial. However, in his brief, under "Errors Relied Upon for Reversal," he assigns one ground:

"That the Court erred in admitting in evidence and permitting the same to be read to the jury a search warrant issued by Frank Leas, a Justice of the Peace."

There is no assignment that the verdict is not sustained by sufficient evidence or is contrary to law.

After the appellant set out in his brief the one ground relied upon for reversal, he makes the following statement:

"The bill of exceptions shows that the State to sustain the issues on its part offered in evidence the search warrant and the return of the sheriff thereon, dated June 27, 1934, and to the introduction of this affidavit the appellant objected for the reason that the warrant so was issued in the exparte proceedings of which he was not a party. That the admission of this warrant was an attempt to get before the jury a statement made by the complaining witness, a whole number of facts that would not be admissible in evidence because they were hearsay and obtained as mere hearsay and statements made in proceeding to which the appellant was not a party and in his absence and that such statement so contained in said warrant the appellant was given no opportunity to cross-examine said witnesses and meet them face to face."

This is followed in the brief by a copy of the search warrant.

Following the search warrant he makes a statement in four paragraphs, each going to the question that the search warrant is not admissible in evidence for the reasons that it 1, 2. violates appellant's constitutional right "to meet the witnesses against him face to face"; that the facts stated in the search warrant are purely ex parte, and that the appellant was not a party to the proceedings had at the time the search warrant was issued.

He makes no objection to the sufficiency of the search warrant. He does not object upon the ground that probable cause was not shown for issuing the search warrant, or that it failed to describe the premises to be searched, or any other ground bearing upon its sufficiency. He relies wholly upon what he claims is his constitutional right of meeting the witness, face to face, who made the affidavit upon which the search warrant was issued.

In presenting the question the appellant has made no reference whatever, either in his brief or in the record, to the instructions given by the court to the jury. No objection is made or error assigned upon the introduction in evidence of the platform binder canvas which was found by reason of the search warrant. This court has held many times that evidence of what is found in making the search is not admissible until the search warrant has been introduced in evidence. At the trial of this case the prosecuting attorney offered and introduced in evidence the search warrant together with the affidavit and the return of the sheriff. It was objected to in the manner above quoted.

If a part of the search warrant was admissible in evidence, under the objection here presented, all of it was admissible. In addition to this the court will presume that the trial court properly limited the use of the search warrant, the affidavit upon which it was based, and the sheriff's return by proper instructions to the jury.

The affidavit, upon which the search warrant was based, was made for the one purpose of showing probable cause for its issuance. It was not and could not be used as proof of the appellant's guilt, and was not made and executed for that purpose.

There is ample evidence in the record to warrant a conviction of the appellant, and this court, under the conditions here presented, will presume in favor of the regularity of the trial court's procedure, and that the search warrant and affidavit were properly limited by instructions. Finding no reversible error, the judgment of the lower court is affirmed.

GEORGE v. STATE