Atz v. Andrews

• Decision Date: 30 June 1922
• Citation: 84 Fla. 43,94 So. 329
• Parties: ATZ v. ANDREWS, Judge.
• Court: Florida Supreme Court

94 So. 329

84 Fla. 43

ATZ v. ANDREWS, Judge.

Florida Supreme Court

June 30, 1922

Certiorari to Circuit Court, Lake County; C. O. Andrews, Judge.

Certiorari by George Atz against C. O. Andrews, Judge of the Seventeenth Judicial Circuit of the State of Florida, to review the judgment of the circuit court affirming a judgment of the county court convicting defendant of the unlawful possession of intoxicating liquor.

Judgment quashed.

Syllabus by the Court

SYLLABUS

Ruling on objection to remarks of prosecutor held prejudicial. Where, during a trial in a criminal prosecution in the county judge's court for alleged unlawful possession of intoxicating liquors, counsel for the state makes statements in the presence of the jury that 'the article produced was intoxicating,' and 'that he was not only satisfied, but that he knows it is intoxicating,' and an objection of the defendant to such statements, not made under oath as a witness in the case, is overruled by the trial court in the presence of the jury, and the testimony in the case as to the intoxicating nature of the liquors is indefinite and inconclusive, such ruling of the trial court on the objections to the statements made by the attorney for the prosecution is a departure from the essential requirements of the law, and, in view of the testimony and the charges thereon, such statements and the rulings thereon reasonably must have been materially harmful to the defendant; therefore a judgment of conviction for the offense alleged, that is affirmed on appeal by the circuit court will be quashed on certiorari from the Supreme Court.

COUNSEL

Koonce & Hall, of Leesburg, for petitioner.

Rivers Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen., for respondent.

OPINION

ELLIS and WEST, JJ.

Withhold concurrence or nonconcurrence upon the ground that no 'opinion of the court' was delivered in this case. Section 2977, Revised General Statutes of Florida.

The above headnote covers the portion of the opinion that was concurred in by a majority of the court. See State v Brown, 83 Fla. 339, 91 So. 370; Lowman v State, 80 Fla. 18, 85 So. 166, for precedents. See, also, concurring opinion of Mr. Justice Ellis, concurred in by Mr. Justice West, in the case of American Railway Express Co. v. Weatherford, 84 Fla. ----, 93 So. 740.

BROWNE. C.J.

George Atz was convicted in the county judge's court of Lake county for unlawfully having alcoholic and intoxicating liquor in his possession.

On appeal to the circuit court of the Seventeenth judicial circuit the judgment was affirmed.

The case is before us for review on certiorari. Several questions are presented that involve constitutional guaranties.

It appears that on the night of the 4th of July, 1921, a deputy sheriff and a policeman entered a restaurant where the defendant boarded. The policeman entered through the front door which was open, and the deputy sheriff obtained admission by knocking on the back door and being admitted by the defendant. Neither had a search warrant. They made no search of the premises, but, upon gaining admission, the deputy sheriff said to the defendant: 'I understand you have got some shine around here, and keeping some here for sale.' The defendant then said: 'You know what you are talking about. I have got it, and I will give it to you.' He then went to a little closet or pantry in the kitchen, and got a couple of boxes containing bottles filled with some liquid, and gave it to the deputy sheriff, who then arrested him and took him to jail.

Both of the officers testified that they went in the restaurant because they had seen Atz there a few minutes before. Nine bottles of the liquid that was delivered to the officers by Atz on the night of July 4th, were introduced in evidence on the trial.

After the state's evidence was concluded, the defendant announced he would introduce none, and the arguments for both sides concluded, a motion was made by the attorneys for the state to reopen the case, and permit the state to introduce such testimony as it wishes 'as to intoxicating liquor.'

The bill of exceptions recites:

'But the said judge did overrule the defendant's objection, and over the objection of the defendant did reopen the case and submit the said nine bottles to the jury to be tasted by them, whereupon some of the jurors tasted the same and others did not.'

One of the counsel for the state, in his argument to the court in behalf of his motion for a continuance and for leave to prodeuce testimony that the bottles contained intoxicating liquor, stated in the presence of the jury that 'he was satisfied that the article produced was intoxicating,' and he further stated in the presence of the jury 'that he was not only satisfied, but that he knows that it is intoxicating.'

Objection to this language was made by the defendant, but the court overruled the objection, and did not instruct the jury not to consider the statements of the attorney for the state, and it went to the jury as a solemn statement by an officer of the court of the very fact--and a material one--that the state attorney said he needed to make proof of.

The judgment is attacked upon five grounds: (1) The admission in evidence of articles obtained by the officers without a search warrant; (2) the admission in evidence of an alleged confession; (3) charges of the trial court; (4) allowing some of the jurors to taste the contents of the bottles; (5) improper statements by the attorney for the state in the presence of the jury of a fact material to the issue, that was not otherwise proven.

1. The first question raised challenges the right to introduce in evidence the bottles and the liquid contained in them, that were taken possession of by the deputy sheriff on the night of July 4th.

It is not necessary to determine whether or not the place where the liquor was kept was the residence of the defendant, as that would only be material on the question of his right of possession, which is not involved here.

On the question of whether it was legal to use as evidence articles found as a result of a search without a warrant, the constitutional guaranty is no confined to the residence or the home, but includes 'their persons, houses, papers and effects.' Section 22, Declaration of Rights, Constitution of Florida; Fourth and Fifth Amendments to Constitution of United States.

However improbable the testimony of the two officers may be, it is uncontradicted, and they do not say that they went there for the purpose of searching for liquor, or that they made any search, but that upon the mere asking the defendant if he had any shine to sell, he produced it and delivered it to them. Had they made a search of the premises without a warrant, the fact that the defendant opened the door to the knock of the deputy sheriff and told him to come in would not be construed as an invitation to enter for the purpose of making a search, or authority for searching after he had so obtained entrance. It is an act of ordinary courtesy to a person who knocks at the door of one's home to invite him to enter, and such an act of courtesy will not be construed as a waiver of 'the right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches,' which 'shall not be violated.' Section 22, Declaration of Rights, Constitution of Florida; Fourth Amendment to Constitution of United States.

There was in this instance, however, no search made, and none attempted, and was there any demand by the officer that the defendant deliver to him any intoxicating liquor that he had in his possession.

Had there been, the introduction of the illegally acquired evidence would have been reversible error.

We do not say that there may not be instances where property is taken possession officers who have obtained entrance to a house without objection or even with the consent of the owner, or where the testimony of an officer that it was voluntarily delivered to him by the owner, possessor, or any one else, is contradicted, where it would be improper to introduce the evidence so obtained. We only say that in this case, there being no contradiction by the accused or any one else of the statement of the officers as to the voluntary acts of the accused in giving him the bottles, that the evidence so obtained was not improperly admitted.

In rendering his decision affirming the judgment of the county judge's court on appeal, the circuit judge said that 'even admitting that the liquor was seized without legal authority, this court is not inclined to adopt as applicable to this case the view laid down in the recent case of Gouled v. U. S., 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647, nor the former case of Boyd v. U. S., 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746,' and held that the illegally acquired evidence was not improperly admitted, citing 4 Wigmore on Evidence, p. 3126; Underhill on Evidence, 102, 103, and 2 Wharton's Criminal Evidence, p. 1076.

These authors wrote their treatises during the period when the constitutional guaranties of life, liberty, and property were being modified and construed away to such a degree that wise statesmen and constitutional lovers inaugurated a back to the Constitution movement, that must find support in the courts, if our liberties are to be preserved.

It is of such a tendency that Mr. Justice Bradley said:

'It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of...