The appellant was charged by way of a grand jury indictment in three counts with the offenses of (1) involuntary manslaughter, (2) reckless homicide and (3) leaving the scene of an accident. He was found guilty on counts two and three. His motion for new trial was overruled and he prosecutes this appeal as a pauper.
The evidence discloses that on January 26, 1952, Mary Throckmorton and another woman left a tavern in downtown Indianapolis at about 8:00 P.M. intending to cross the street. It was somewhat dark. They left the west curb of the street at a point other than an intersection and walked between two automobiles
The only witness who testified on the subject testified without contradiction that the appellant was driving somewhat faster than forty miles per hour. He was "going south on the right hand side of the white line, and he wasn't on the white line and neither was he in the middle. He was just about the way he should be." The car "was about half way between the parked cars on Virginia Street, and the middle of Virginia." Traffic was not especially heavy, but there were cars going in both directions on Virginia Avenue. The appellant did not testify.
In Beeman v. State (1953), 232 Ind. 683, 115 N.E.2d 919, we lately had occasion to consider the sufficiency of the evidence to sustain a conviction of reckless homicide. Applying the rules there stated, it seems apparent that the evidence here falls far short of establishing the offense. There is no evidence that the appellant voluntarily, with knowledge of existing conditions, did an improper act or refrained from doing a proper one under circumstances where his action or failure to act evinced an entire absence of any care or a heedless indifference of the results which might follow. It cannot be found or inferred from the evidence that he made a conscious choice of a course of action which injured another, knowing of the danger to the other, or knowing facts which would disclose the danger to any reasonable man.
Negligent conduct without more will not support a conviction in these cases. There is no evidence whatever
Following the accident the appellant stopped momentarily, then drove away without offering or rendering assistance of any kind, and without making his identity known to anyone in any way. He was living in a fraternity house at 733 North Pennsylvania Street in the City of Indianapolis. A vacant three stall garage was located in the rear thereof on the alley. The appellant put his automobile in the center stall of that garage. This he did after talking with one Roach, the house manager of the fraternity house, who had charge of the rental of the garage, and who suggested that the appellant put the automobile in the garage. The following afternoon, January 27th, two police officers who were attempting to locate the automobile involved in this matter, came to the garage. They looked through the screen on the garage doors and saw what they believed to be the
The appellant urges error in the overruling of his motion to suppress any and all evidence obtained by entering the garage and any and all tests or experiments or articles or testimony concerning any facts
Article I, § 11 of our Constitution must receive a liberal construction in its application to guarantee the people against unreasonable search and seizure. Flum v. State (1923), 193 Ind. 585, 590, 141 N.E. 353; Wallace v. State (1927), 199 Ind. 317, 157 N.E. 657; Dalton v. State (1952), 230 Ind. 626, 105 N.E.2d 509; Boyd v. United States (1886), 116 U.S. 616, 635, 29 L.Ed. 746.
An automobile is an "effect" within the constitutional provision. Robinson v. State (1925), 197 Ind. 144, 149 N.E. 891; Dalton v. State, supra. The right of the people to be secure against unreasonable searches and seizures is not limited to dwelling houses. It may extend to other structures, including a garage. United States v. Slusser (1921), 270 Fed. 818; Boyd v. State (1949), 206 Miss. 573, 40 So.2d 303; Taylor v. United States (1932), 286 U.S. 1, 76 L. Ed. 951, 52 S.Ct. 466; 79 C.J.S., Searches and Seizures, § 66(f).
The evidence discloses that the automobile in this case was owned by the appellant. In the light of
There is no evidence that the appellant consented or authorized Roach to consent to the entry of the garage by the officers for any purpose. The law will not imply such authorization. If such was in fact given by the appellant, it was incumbent upon the state to prove it. Dalton v. State, supra.
It is true that in determining the question of the reasonableness of a search or seizure a different test is applied depending upon whether an automobile or a stationary structure is involved. The reasonableness of searches of motor vehicles depends largely upon the facts and circumstances of each particular case. This is necessarily so because of the ease and rapidity with which motor vehicles may be moved from place to place, and the consequent impossibility of procuring warrants in all cases in time to search such vehicles. Pettit v. State (1935), 207 Ind. 478, 188 N.E. 784; 79 C.J.S., Searches and Seizures, § 66(h). Thus in Pettit v. State, supra, this court said that:
In the case just referred to the police officers who had arrested the defendant had probable cause for believing that he had committed a robbery and they also had probable cause for believing he had used his automobile in the commission of it. They arrested the defendant, and then learned that the automobile was in a garage on the premises of appellant's aunt. Whether the defendant had placed it there with the knowledge and permission of his aunt does not appear. The officers then took the defendant with them to the garage. Upon searching the automobile there they procured the items of evidence sought to be suppressed. The evidence was held to be admissible.
That case differs from the case at bar in many respects. In this case the appellant was not arrested until after the garage had been entered and his automobile had been thoroughly searched and the car itself removed by the police. There is no evidence here that the police officers had probable cause for believing that the appellant had committed a felony, nor for believing that the automobile had been involved in the commission of a felony until after the search had been made. Neither were the circumstances such as would justify the officers in believing that a search might be rendered impossible or impracticable if delayed until a warrant was obtained. As pointed out in Dearing v. State of Indiana (1948), 226 Ind. 273, 79 N.E.2d 535, a search without a search warrant is not justified because of the existence of facts which would justify the issuance of a search warrant. In this case, as in the case just referred to, the search could not be justified as an incident of the arrest because no arrest had been made, and when it was made it was
The evidence discloses beyond question that there was ample time and opportunity for the obtaining of a search warrant. It appears probable that the officers thought the consent of Roach was sufficient to justify them in entering the garage and searching the vehicle. We conclude otherwise and hold that the search was violative of Art. I, § 11 of our Constitution.
Other evidence which tended to identify the appellant as the driver of the automobile involved in this case was admitted in evidence, but since the jury's decision was based upon evidence which should not have been admitted, and since we have no way of knowing what conclusion the jury might have reached had such evidence not been considered, the admission of the evidence unlawfully obtained constitutes reversible error. Dearing v. State of Indiana, supra.
The record discloses that all available evidence was thoroughly developed at the trial of this case, and since, under the surrounding facts and circumstances a conviction of the appellant on the second count of the indictment could not be sustained in any event, we deem it unnecessary to consider the sufficiency of the second count of the indictment to withstand the motion to quash. Other questions raised by the appellant would not likely arise on a retrial of the appellant on the third count of the indictment, and it is, therefore, unnecessary to consider them in this opinion.
For the reasons above stated, the judgment is reversed and the cause is remanded to the trial court for further proceedings.
Bobbitt, Flanagan, Emmert & Gilkison, JJ., concur.
NOTE. — Reported in 119 N.E.2d 428.