CONCURRING OPINION. I concur in the reversal of the judgment in this case for the following reasons: The objection to the evidence procured by the search warrant should have been sustained because the same search warrant had been served once on May 21, when some of the property was found, but none was seized, and again on May 27, when the same articles were found in the same place and some were found elsewhere, which were then seized. And the evidence obtained at the latter search was admitted over the objection of the defendant.
A search warrant which has once been served on the occupant of the premises therein described and had been used in making a search of those premises that was fully complete, and was followed by the seizure of the articles found there, and of which no return had been made, did not authorize some of the officers to return and search those premises the second time five or six days later. McDaniel v. State (1925), ante 179,150 N.E. 50.
The place to be searched was not sufficiently described either in the search warrant or in the affidavit upon which the search warrant was issued. The affidavit is set out in the search warrant and alleges that the appellant *Page 548 has in his possession intoxicating liquor, being then and there possessed, sold, bartered, and given away as a beverage and being then and there kept for the purpose of being sold, bartered, used and given away in violation of the laws of this state, and has in his possession stills, implements, devices and property kept for the purpose of the manufacture of intoxicating liquors, intended for use in violation of the laws of this state, at the following premises, on what is known as the old Coble farm in section 17, township 12, range 4, 72.5 A.E. 1/2 of N.E. 1/4 in the Cloverdale township of Putnam of said county and state.
The search warrant proceeds as follows: "YOU ARE THEREFORE COMMANDED, in the name of the State of Indiana, with the necessary and proper assistance, in the daytime or in the nighttime, to enter into the premises described in said affidavit and there diligently search for the said intoxicating liquors and said stills, devices and property kept for the purpose of manufacturing intoxicating liquors, as aforesaid, and that you bring the same or any part thereof found on such search, together with the vessels in which such intoxicating liquors are contained, and all the implements, fixtures, devices and property used or kept for such illegal selling, bartering, giving away or manufacture of such intoxicating liquors, and all books, papers, bills, documents, and letters relating to such liquors, implements, devices and supplies, and manufacture of such liquors forthwith before me, at my office, to be disposed of according to law. Given under my hand and seal of the court, this 21st day of May, 1923.
"(Signed) Charles F. Zeis."
In State v. Robinson (1852), 33 Me. 564, the court held that the requirements of the constitution in reference *Page 549 to search warrants that, "special designation of the place to be searched" shall be made is not answered by words which, if used in a conveyance, would not convey it, and which would not confine the search to one building or place. The court in that case said: "The constitution declares that `no warrant to search any place, or seize any person or thing shall issue without a special designation of the place to be searched, and the person or thing to be seized. When a designation so limited and special, as to distinguish the place or thing from all others of the like kind, cannot well be made, it should not be required. There can be no difficulty experienced in practice, if such a designation of the place be required as would, if used in a conveyance, be sufficient to describe and convey it. That cannot be considered as a special designation of the place, which if used in a conveyance would not convey it, and which would not confine the search to one building or place.'"
In Sullenger v. Baecher (1913), 55 Ind. App. 365, which was a suit upon a tax deed, the description of the land was as follows: Part of survey 17, township 1, range 10, consisting of 100 acres, in Johnson township, Knox county, Indiana, and was held insufficient to convey title because it was not sufficient to indicate what part of the survey 17 was covered by the description. The court said: "No surveyor from this description alone would be able to locate and identify the particular tract intended, for the reason that 100 acres of land laid off any place within the survey would meet and comply with all of the terms of description." See Cooper v. Jackson (1880),71 Ind. 244; Ball v. Barnes, Aud. (1890), 123 Ind. 394; Armstrong v. Hufty (1899), 156 Ind. 606; Brown v. Reeves Co. (1903), 31 Ind. App. 517; Green v. McGrew (1905),35 Ind. App. 104, 111 Am. St. 149; Reed v. Earhart, *Page 550 Exr. (1882), 88 Ind. 159; Ford v. Kolb (1882), 84 Ind. 198.
The description used in the affidavit and search warrant would not have been sufficient in a deed for real estate to convey title to it.
The place to be searched was not sufficiently described, either in the affidavit or search warrant and the search warrant was therefore void. Flum v. State (1923), 193 Ind. 585; State v. Phipps (1924), 194 Ind. 459.