Cohn v. State

• Decision Date: 14 March 1908
• Parties: COHN v. STATE (two cases). PERKINS et al. v. SAME (three cases). HORTON v. SAME.
• Court: Tennessee Supreme Court

109 S.W. 1149

120 Tenn. 61

COHN v. STATE (two cases).

PERKINS et al. v. SAME (three cases).

HORTON v. SAME.

Supreme Court of Tennessee.

March 14, 1908

Appeal from Criminal Court, Davidson County; W. M. Hart, Judge.

Sol Cohn was convicted, in two cases, for illegally selling liquor on Sunday, and for illegally selling cigarette papers respectively, Charles Perkins and Lem Horton were convicted in each of three cases, for illegally selling liquor on Sunday, and Lem Horton was convicted alone for keeping and selling cigarette papers, and they severally appeal; the cases being heard together, in this court. Affirmed.

W. C Cherry, for appellants.

Asst Atty. Gen. Faw, for the State.

NEIL J.

In the first case against Sol Cohn, he was held under presentment, in the criminal court of Davidson county, for selling liquors on Sunday, and, in the second case, for selling cigarette papers, contrary to the statute applicable to such case. In each of the three cases against Charles Perkins and Lem Horton, they were likewise held for selling intoxicating liquors on Sunday. In the case brought against Lem Horton alone, he was held under presentment containing several counts; one for keeping cigarette papers in stock, another for selling cigarette papers, and another for giving away cigarette papers.

In all of the foregoing cases the plaintiffs in error were convicted on trial before the court, without the intervention of a jury, and appropriate punishment assessed against them. Thereupon they severally appealed to this court, and have here assigned errors.

The cases turn upon a single question, and therefore they were all heard together in this court.

The question arises on the admission of alleged illegal testimony in the court below. John Yeaman, a deputy sheriff of Davidson county, testified that, accompanied by his brother, Owen Yeaman, and Mr. Adkin, both being regular deputy sheriffs, he went to Cohn's place about 6 o'clock on Sunday morning, the 13th day of January, 1907, and mounted a stairway leading up by the side of the saloon, and, after they had reached a point about halfway up the stairway, they stopped and removed some bricks from the wall, and the mortar along with them, being careful to draw the bricks and the mortar out upon the stairway so as to give no indication, in the saloon, of what they were doing on the stairway; that the hole thus made was smaller on the inside of the saloon than on the outside; that, having made this peephole, they sat and watched occurrences in the saloon; that they saw Lem Horton and Charles Perkins enter the barroom by a rear door, and they were soon followed by a crowd; that witness and those who were with him watched the persons inside for an hour; that Lem Horton and Charles Perkins sold, and received money for, a great many drinks of whisky and beer, certainly more than three; that they saw Lem Horton reach under the bar and take out a large box of cigarette papers and sell a book of them to a customer, one Henry Ewing; that he rang up this sale of the cigarette papers just as he did the drinks, in the cash register; that the witness and the others with him got the cigarette papers and the sale book and brought them to court. It was further testified that Horton and Perkins worked for Cohn.

The other witnesses present gave substantially the same testimony as that given by John Yeaman. At the close of the testimony of each witness, the plaintiffs in error, by their counsel, moved the court to strike out the entire testimony of each witness "because the same was inadmissible, and incompetent, because obtained illegally and contrary to the laws of the state, and the state and federal Constitutions." This motion was overruled in the court below, and this action of the court is made the basis of the error assigned here.

It is insisted that the evidence thus obtained was in violation of the constitutional provision against unreasonable searches and seizures, and also violative of the constitutional inhibition against compelling a party, in a criminal case, to give testimony against himself.

We think the evidence was competent. The unreasonable search and seizure against which the constitutional provision was designed to operate was that made through governmental agency, and has no bearing upon the unauthorized acts of private persons, or of petty officers of the law. Nor has the inhibition against compelling a person charged with crime to incriminate himself any more bearing upon the present controversy, since the plaintiffs in error were not required to testify. Nor was any presumption indulged or permitted against them because of their silence. Nor were the plaintiffs in error required to produce any private papers that would so speak as to incriminate them. It is true that the act of Yeaman and his companions in making a hole in the wall and spying upon the inmates of the building was an unlawful one, for which they were subject to punishment. Still, although the evidence was thus procured, it would not be rejected by the court as relevant to the issue. 4 Wigmore on Evidence, § § 2183, 2264; 1 Greenleaf on Evidence, § 254a; 2 Elliott on Evidence, § 1013.

Some illustrations from the cases will show the scope of the rule.

In the case of State v. Edwards, 51 W.Va. 220, 41 S.E. 429, 59 L. R. A. 465, it appeared that the prisoner was arrested for larceny, in obtaining money through a trick. When arrested, along with certain good money found upon his person, there was found a supply of worthless bank notes. The latter were offered as evidence on the trial, as a part of the testimony showing the trick that had been practiced upon the prosecutor. This was objected to on the ground that these papers were taken from the person of the prisoner illegally by the officer who arrested him. Speaking to this point, the court said:

"One complete answer to this is that, if it was an illegal seizure, that is no objection to the use of the papers as evidence, they being proper evidence in the case in other respects, for the court can take no notice how they were obtained, whether lawfully or unlawfully, nor would it form a collateral issue to determine that question."

In Williams v. State, 100 Ga. 511, 28 S.E. 624, 39 L. R. A. 269, it appeared that a police officer devised the following plan to discover whether Sarah Williams was selling whisky in violation of law. He gave to one Mose Lucas a silver quarter marked with a cross, and an empty half-pint whisky flask with a file on the neck, and to one Jeff Bunkley a silver 10-cent piece, marked with a cross on the head of the female figure on the coin. Both went in the direction of the house of Sarah Williams, the accused. In a few minutes thereafter these two men came out of the back yard, and Mose Lucas handed the officer the same bottle that had been given to him, and in the same condition, except that it was full of whisky. The police officer then called another officer, and the two entered the house of Sarah Williams, and the officer put his hand in her apron pocket, took out her purse, and found in it the two pieces of marked money above referred to. He testified that the two pieces were the same that he had marked and given to Lucas and Bunkley. He then searched her house and found a gallon jug of blackberry wine and three bottles, two of them quart bottles and one of them a half-gallon bottle. One of the bottles was nearly full of whisky, and another had only the bottom covered with whisky, and a third, the half-gallon bottle, was full of something that looked like whisky. The officer had no search warrant to search either the defendant or the house. The jug of wine, the half-gallon bottle of whisky, the quart bottle of whisky, partly used, and the other bottle of whisky which contained a little bit in the bottom of it, together with a tin funnel, and the 25-cent and the 10-cent piece of silver money, were tendered in evidence and permitted, over the objection of the accused. The objection was overruled, the court saying:

"Irrespective of the many respectable authorities above referred to, and speaking for ourselves, we are satisfied that the contention of the accused that her constitutional rights were infringed by the ruling of the trial judge admitting the evidence complained of ought not to be sustained. As we understand it, the main, if not the sole, purpose of our constitutional inhibitions against unreasonable searches and seizures, was to place a salutary restriction upon the powers of government. That is to say, we believe the framers of the Constitution of the United States, and of this, and other states, merely sought to provide against any attempt, by legislation or otherwise, to authorize, justify or declare lawful any

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