Billings v. State

• Decision Date: 16 January 1923
• Docket Number: 22990
• Citation: 191 N.W. 721,109 Neb. 596
• Parties: CHARLES BILLINGS v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

191 N.W. 721

109 Neb. 596

CHARLES BILLINGS v. STATE OF NEBRASKA

No. 22990

Supreme Court of Nebraska

January 16, 1923

ERROR to the district court for Antelope county: ANSON A. WELCH JUDGE. Affirmed.

AFFIRMED.

J. F Boyd, for plaintiff in error.

Clarence A. Davis, Attorney General, and Charles S. Reed, contra.

Heard before MORRISSEY, C. J., LETTON, DAY and FLANSBURG, JJ SHEPHERD, District Judge.

OPINION

DAY, J.

Charles Billings, hereinafter designated defendant, was convicted upon an information charging him with unlawfully having in his possession a still or equipment for the manufacture of intoxicating liquors, and also for unlawfully having in his possession ten gallons of mash to be used in the manufacture of intoxicating liquors. He was adjudged to pay a fine of $ 500 and costs, and to be imprisoned in the county jail for a period of 30 days. To review this judgment he has brought the record of his conviction to this court.

The defendant contends that the trial court erred in overruling his motion, made before the commencement of the trial, for a return to him of all articles seized by the sheriff under a search warrant, and also to suppress the evidence thus secured, for the reason that the articles seized and the information obtained were beyond the scope of the search warrant, both as to the articles to be seized and the place to be searched. Defendant also contends that it was error for the court, over his objection, to permit the articles so seized to be introduced in evidence, and also to permit the officers to testify concerning information obtained by them in the execution of the writ.

The record shows that the county judge of Antelope county upon a proper affidavit issued and delivered to the sheriff of said county a search warrant commanding him to search the "residence and buildings" of the defendant for intoxicating liquor, the residence and buildings being described as situate on a specifically described quarter section of land. While the sheriff was executing the writ, his attention was attracted to some suspicious circumstances which he proceeded to follow up, and out in the field some distance from the residence and buildings he discovered a still fully set up and equipped, which was concealed by being covered over with hay. He also found on the premises concealed in the same manner a quantity of rye mash. The sheriff took possession of these articles under the writ, and also arrested the defendant. Thereupon the sheriff filed a complaint upon which this information is based against the defendant, charging him with the unlawful possession of a still and mash for the manufacture of intoxicating liquors.

It is argued by the defendant's counsel that, in view of the fact that the articles seized by the sheriff were not specifically described in the search warrant, and that the place where they were found was not the place designated to be searched, therefore the articles themselves as well as the information gained by the sheriff were illegally obtained, and that in allowing such evidence to be received upon the trial the fourth amendment to the Constitution of the United States, as well as section 7, art. I of our own Constitution, was violated.

The provisions of the federal and state constitutions above referred to are in identical language, and are as follows: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized."

We first consider the question presented in the light of our own Constitution. Assuming for the purpose of this decision that the sheriff in seizing the still and mash exceeded the authority which the search warrant gave him, does it follow that the articles so obtained and the information gathered cannot be introduced in evidence? The great weight of authority as announced by the state courts, our own included, seems to favor the doctrine that evidence which is pertinent to the issue being tried is admissible without regard to the manner in which it was obtained. Involuntary confessions, however, rest upon a different footing. This court for a period of more than 45 years has steadily adhered to this doctrine. In Geiger v. State, 6 Neb. 545, an objection was made to the receiving in evidence of a letter from the defendant to his wife, which had been procured by the state. Notwithstanding a section of our statute which renders the husband and wife incompetent to testify concerning any communication made by one to the other during the marriage, the court held that, where papers or letters are offered in evidence in the trial of a case which are pertinent to the issue, they should be admitted, and the court will not take notice how they were obtained, nor will it form a collateral issue to determine that question. In Russell v. State, 66 Neb. 497, 92 N.W. 751, a pair of old shoes worn by the defendant at the time he was arrested was taken from the jail in his absence and without his consent and received in evidence, and it was held not to be a violation of his constitutional right to be secure against unreasonable searches and seizures. In Younger v. State, 80 Neb. 201, 114 N.W. 170, shoes which had been forcibly taken from the defendant were offered and received in evidence over his objection, and it was held that, where articles are offered in evidence which are pertinent to the issue, the court will not exclude them on account of the manner in which they were obtained. In Nixon v. State, 92 Neb. 115, 138 N.W. 136, the action was a prosecution for violating the liquor laws of this state. It was held that it was not error to permit the state to introduce a federal liquor license issued to the defendant which was obtained from the defendant by stealth.

Among the many well-reasoned decisions upon the precise point in issue, we quote from the case of People v. Mayen, 188 Cal. 237, 205 P. 435. In that case articles were taken under an invalid search warrant. The trial court denied a return of the articles to the defendant, and they were afterwards received in evidence. In disposing of the case, the court said:

"Without at all minimizing the gravity of such offense, or the sacredness of the right of every citizen to be secure in his person, home, and property from any unlawful invasion by the state, it does not follow that the subsequent detention and introduction in evidence of the property thus wrongfully taken constituted error on the trial of the appellant. The trespass committed in the wrongful seizure of these...