Bush v. State

• Citation: 199 N.W. 792,112 Neb. 384
• Decision Date: 07 July 1924
• Docket Number: 23926
• Parties: G. W. BUSH v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

199 N.W. 792

112 Neb. 384

G. W. BUSH v. STATE OF NEBRASKA

No. 23926

Supreme Court of Nebraska

July 7, 1924

ERROR to the district court for Douglas county: CHARLES A. GOSS JUDGE. Affirmed.

AFFIRMED.

H. T White and P. W. Emery, for plaintiff in error.

O. S Spillman, Attorney General, and George W. Ayres, contra.

Heard before MORRISSEY, C. J., LETTON, ROSE, DEAN, GOOD, and THOMPSON, JJ., and REDICK, District Judge.

OPINION

GOOD, J.

Plaintiff in error (hereinafter referred to as defendant) prosecutes error to review the record of his conviction of the offenses of unlawful possession of a still, mash and intoxicating liquors.

Defendant insists that the trial court erred in admitting in evidence certain exhibits, because their possession had been obtained bye virtue of a search warrant that was issued upon a complaint which was not sworn to by an officer of the state or county, or a creditable freeholder of the county, and because the warrant did not describe with certainty the premises to be searched. No objection is raised as to the pertinency of the evidence to the issues being tried. That possession of the exhibits may have been obtained in an irregular or illegal manner constitutes no valid reason for excluding them, if they are pertinent to the issues being tried. This precise question has been recently decided by this court in Billings v. State, 109 Neb. 596, 191 N.W. 721, wherein the authorities are reviewed and the rule announced as follows: "Where articles or information are offered in evidence, which are pertinent to the issue, the court will not exclude them because they may have been obtained in an irregular or illegal manner."

Error is urged in permitting the county attorney to place all the equipment and material, which defendant was charged with having in his possession, in full view of the jury before the same had been offered in evidence. The exhibits must necessarily have been produced in court and in the presence of the jury before they could be properly identified by witnesses and offered in evidence. The fact that the jury may have seen the exhibits prior to being offered in evidence certainly could not have been prejudicial to the defendant. The question is devoid of merit.

It is contended that the court erred in admitting a purported oral confession, made by defendant to police officers at the time of his arrest, on the ground that he was not cautioned before he made the statement, that it might be used against him, and because it was not affirmatively shown that the alleged confession was made freely and voluntarily. While a number of the states have a statute which requires that a defendant who is under arrest, must first be cautioned that any statements made by him may be used against him, before they can be offered in evidence, this state has no statute of that character. The general rule is that, in the absence of statute, it is not necessary to first warn a prisoner under arrest that any statements he may make may be used against him, although it is a very proper thing to do. The so-called confession consists of answers made by the defendant to questions propounded by the police officers at the time of the arrest. When the officers went to the premises occupied by the defendant--a two-story residence property--they found the defendant on the second floor of the building, and that no other person was on that floor. They found a still in full operation, intoxicating liquor being distilled, about 2,000 gallons of mash in barrels, and a considerable quantity of intoxicating liquor. In response to questions, defendant stated that he owned the still; that he had been in the business for 30 or 40 days; that he was turning out about 70 gallons...