DISSENTING OPINION. I cannot concur in the holding announced in the prevailing opinion, viz.: that the search of the automobile in question was invalid because the evidence was insufficient to show that the officers, who arrested appellant's three companions, had probable cause, at the time of such arrest, to believe that appellant had committed the felony of transporting intoxicating liquor.
The appellant was not arrested or searched at the time *Page 151 his companions, Slane, Hopper, and Berry were arrested, but he, at that time, abandoned the automobile containing the ten gallons of grain alcohol and ran away (and did not thereafter, even at his trial, assert ownership of the car). The search of the automobile which was subsequently made at the county jail was justified by appellant's acts in abandoning the automobile and fleeing from the officers — such acts under the circumstances of the case might reasonably have convinced the officers that the automobile contained intoxicating liquor. Hanger v. State (1928), 199 Ind. 727, 160 N.E. 449; State v. Godette (1924),188 N.C. 497, 125 S.E. 24.
The search of the automobile was also justified as an incident to the arrest of Slane, Hopper, and Berry. The police officers knew that a delivery of liquor was to be made at the place where appellant stopped the car and asked if everything were "all right." It also appears from the evidence that Berry was in the liquor business and had been convicted several times of violating the liquor law. Whether the officers possessed further evidence of probable cause justifying the arrest of Slane, Hopper, and Berry does not, in this action against Karlen, appear, but it does appear from the record that Slane, Hopper, and Berry were indicted jointly with appellant on the charge of transporting intoxicating liquor, were found guilty, sentenced and at the time of appellant's trial were serving their sentences. We must presume that the proceedings of the courts are regular and therefore that the arrests of Slane, Hopper, and Berry were lawful.
It is noted that no objection made by appellant to the introduction in evidence of the result of the search of the automobile is based on the ground that the automobile was at the time of the search owned or controlled by him, and an examination of the record fails to disclose any evidence that appellant owned the automobile *Page 152 (although it may be inferred that he was in control of the same before he abandoned it). He could not successfully object to the search of another's property.
It appears to me that no constitutional right of this appellant was invaded by the search of the automobile load of liquor which he abandoned and left in the officers' hands when he fled.
Almost eleven months' time intervened between the date on which appellant was indicted and the date of his trial, and during that time he made no attempt to have the court suppress the evidence which he claims was obtained by an unlawful search. It is held by the federal courts and by a majority of the state courts in which the question has arisen that a defendant must, in advance of his trial, raise objection to such evidence, and, failing to do so, he cannot take the time of the court on such collateral issue at his trial. This rule has been in effect in this state, at least since the decision of Hantz v. State (1929),92 Ind. App. 108, 166 N.E. 439, almost two years ago. If the decision of the Appellate Court in that case, and in several others like it, is correct it should be followed. If it is incorrect it should not be ignored, but should be expressly overruled, so that the public, the bar and the Appellate Court may know definitely the holding of this court upon the question.
It is my opinion that the judgment should be affirmed.