Certiorari den. U.S. Sup. Ct. May 24, 1954.
Eight separate indictments charging various violations of the gaming laws were consolidated for trial and appellant was found guilty on each indictment. The trial was by jury.
The evidence consisted largely of what was discovered upon a search made pursuant to the provisions of § 48-6111, Burns' 1950 Replacement, which reads as follows:
The first question presented is whether the above act is constitutional. Clearly it is not.
The Constitution of the United States provides:
The Constitution of the State of Indiana provides:
The determination of the question whether there is probable cause for the issuance of a search warrant is a judicial function. Bedenarzik v. State (1933), 204 Ind. 517, 185 N.E. 114. The statute above quoted does not provide for such judicial determination, and is therefore unconstitutional and void.
On the hearing, certain property not here involved and not contraband was found to be the legitimate property of appellant and ordered returned to him. But, with that exception, the hearing showed that the appellant denied ownership of or interest in the property seized or the premises searched. In conformity with that contention of appellant, a stipulation was entered in which the court stated that after the return of the property claimed by appellant as his, as above set forth, the motion to suppress should be overruled in all other respects. This waived objections to the illegality of the search. May v. State (1953), 232 Ind. 523, 112 N.E.2d 439.
The question of the constitutionality of the above-quoted statute is presented in a number of different ways. However, having decided that question, and that the illegality of the search was waived, we will give no further notice to this question when further specifically presented.
We will proceed to examine other questions raised.
A plea in abatement was addressed to each indictment. To each of these pleas a demurrer was sustained. The abatement pleas alleged (1) that the grand jury took the inquiry into appellant's alleged offenses out of order and (2) that the prosecutor's office unduly influenced the action of the grand jury.
Section 9-824, Burns' 1942 Replacement, sets out the order of business by a grand jury. But this act is advisory only. The grand jury being a part of the judicial branch of government must have reasonable discretionary power in determining the order of conducting its business.
Appellant filed a motion for change of venue from the county on his pleas in abatement. Change was denied. We have above held that no issues of fact were presented by the pleas in abatement. The only ground for change of venue from the county in a criminal case is "the excitement or prejudice against the defendant in the county or in some part thereof." Section 9-1301, Burns' 1942 Replacement. Motions for change of venue under this statute and for this cause are addressed to the sound discretion of the trial court in all cases except those punishable by death. Section 9-1305, Burns' 1942 Replacement. Assuming that a change of venue in a criminal case is proper upon a plea in abatement, the case here, nevertheless, shows only questions of law presented. These questions we have decided against the appellant. It therefore follows that the trial court could not have abused its discretion to appellant's harm. The rule seems logical that where a demurrer is properly sustained to a plea in abatement in a criminal case no reversible error can exist in refusing a change of venue on such plea in abatement.
Appellant filed motions to quash the indictments on the grounds that they do not contain certain and
Appellant complains that a special venire of jurors was used without any evidence that the regular panel had been exhausted. There is no evidence in the record that the regular panel had not been exhausted, and the statement of the court is there that it had been. In the absence of any showing to the contrary, we shall assume that the trial court properly performed its procedural functions.
Appellant filed a motion for a change of venue from the county in the case proper, which, upon presentation of evidence, was denied. The evidence was conflicting and voluminous. The motion was addressed to the discretion of the trial court. Sections 9-1301 and 9-1305, Burns' 1942 Replacement; Vehling v. State (1936), 210 Ind. 17, 196 N.E. 107. No abuse of discretion is here shown.
The court submitted this case to a jury for trial after appellant had waived his right to trial by jury. He says this is error. Appellant certainly was entitled to trial by jury and was entitled to waive that right. But we know of no authority or reason for a contention that he had a right to demand trial without jury.
Appellant objects to certain witnesses being permitted to testify that they placed bets in his alleged place of business when he was not present. There had been evidence from which the court could conclude that appellant was the operator of the place in question and was there operating a gaming house. His presence certainly could not be vital to testimony of actual bets placed there.
Appellant wanted three peremptory challenges for each indictment, a total of twenty-four. Section 9-1502, Burns' 1942 Replacement, provides for three peremptory challenges in cases of misdemeanor. When the indictments in this case were consolidated there was one jury. The statute grants only three challenges as to each jury. The court properly denied this request.
Finally, appellant objects to the giving and refusal of certain instructions.
Appellant's tendered instruction numbered 5 is subject to similar objection. It seeks to instruct the jury that no conviction can be had unless the appellant, himself, gambled. But the statute under which the particular indictment to which this instruction relates, § 10-2311, Burns' 1942 Replacement, provides that conviction may follow if the evidence shows that the defendant frequented any place where gambling was permitted.
Appellant objected to the State's tendered instructions numbered 1 and 3 because they state in effect that appellant's gambling operations could be carried out through agents. He says there can be no principal and accessories in the commission of a misdemeanor. With this we agree. The correct rule is that all concerned in the commission of a misdemeanor are liable as principals. McDaniels v. State (1916), 185 Ind. 245, 113 N.E. 1004. One operating in the gambling field who takes the profits, but has agents or servants actually handle the details, certainly is concerned in the commission of the misdemeanor.
We find no reversible error in the record.
Gilkison, J., not participating.
NOTE. — Reported in 115 N.E.2d 595.