Hughes v. State

• Decision Date: 27 February 1922
• Citation: 238 S.W. 588
• Parties: HUGHES v. STATE.
• Court: Tennessee Supreme Court

Page 588

238 S.W. 588

HUGHES v. STATE.

Supreme Court of Tennessee.

February 27, 1922.

Error to Criminal Court, Putnam County; J. M. Gardenhire, Judge.

P. D. Hughes was convicted of violating the prohibition law, and he brings error. Affirmed.

Worth Bryant and V. E. Bockman, both of Cookeville, for plaintiff in error.

Wm. H. Swiggart, Jr., of Nashville, for the State.

L. D. SMITH, Special Judge.

Plaintiff in error, P. D. Hughes, was convicted in the criminal court of Putnam county on an indictment charging him with violating the provisions of chapter 12 of the Acts of 1917, prohibiting the receipt, possession, and transportation of intoxicating liquors. By consent the trial was had before the trial judge without the intervention of a jury, who after hearing the evidence found the plaintiff in error guilty, and after overruling motion for new trial entered judgment against him for a fine of $50 and a sentence of six months in the workhouse.

The questions presented for our determination arise upon the action of the trial court on exceptions to the testimony introduced by the state. The state introduced three witnesses, namely, C. N. Gracey, a United States deputy collector, W. M. Stout, sheriff of Putnam county, and Bill Gailbreath, who seems not to have held any official position. The testimony of each of these witnesses, to which exception was taken, is substantially that given by Sheriff Stout, and is as follows:

W. M. Stout, sheriff of Putnam county, in which county this offense was committed, if at all, testified that he in company with Gracey, Tyler, and Gailbreath, was on the Buffalo Valley road west of Baxter, and saw plaintiff in error and one Stone come out of a road toward the Buffalo Valley road carrying a nail keg. He says:

"We decided probably that they had whisky," and that, after running their car around the hill out of sight of the plaintiff in error, he, Gailbreath, and Tyler, went back toward where the car of the plaintiff in error was standing, near the side of the road. Plaintiff in error had gotten into his car and started toward Baxter. "We got in the road in front of them and made them stop, and we searched their car, and found in this nail keg one gallon of whisky in a long dark bottle."

He says further:

"We were not out looking for these boys on this occasion, but just happened to see them, and suspicioned that they had whisky. We had no warrant to search or seize the car or whisky, or for the arrest of either of the defendants. I had had some reports that the defendant, Hughes, was engaged in some way in whisky traffic, and seeing them come into the road with the keg, and from their actions and conduct and the reports I had received, I had reason to believe that it was whisky, and when I made a search it proved to be whisky."

The grounds of the exception to this evidence are:

"That the parties in question had no right to hold them up while traveling upon a public highway, and seize and search his car without a search warrant, and without knowing that he had whisky, either on his person or in the car; by so doing they violated defendants' constitutional rights against unreasonable seizure and search."

This exception was overruled by the court, and due exception was taken to the court's action thereon. The court's ruling, as stated in the bill of exceptions, is:

"The court was of the opinion that it was not an unreasonable search, that the offense was committed in the presence of the officers, and that they were justified in making the arrest, as the search resulted in finding whisky."

The evidence introduced by the state unquestionably made a case of violating the liquor laws of the state against the plaintiff in error, and the only question for our determination is whether this evidence can be rightfully made the basis of conviction, having been obtained and procured in the manner indicated. This involves the consideration of two questions: First, whether the act of the officers in arresting the plaintiff in error and in searching his car was a violation of the constitutional rights of the plaintiff in error, which protect him against unlawful searches and seizures; and, second, if the method of making evident this violation of the law was of itself unlawful, and violated the constitutional rights of the plaintiff in error, was the evidence nevertheless admissible, and can it properly be made the basis of a conviction?

A negative answer to the last question stated is based by counsel for plaintiff in error upon the provisions of sections 7 and 9 of article 1 of the Constitution.

Section 7 provides:

That "the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures, and that general warrants, whereby an officer may be commanded to search suspected places, without evidence of the fact committed, or to seize any person or persons not named, whose offenses are not particularly described and supported by the evidence, are dangerous to liberty, and ought not to be granted."

Section 9 provides that —

"In all criminal prosecutions the accused hath the right to be heard by himself and his counsel; to demand the nature * * * of the accusation against him, * * * and shall not be compelled to give evidence against himself."

In his exception to the testimony the plaintiff in error did not specify that the admission of this testimony violated any of his rights under section 9 of article 1 of the Constitution, nor did he in making exceptions specify the particular clause of the Constitution which he claimed was or would be violated by the admission of this testimony; but his exception was based upon the ground that the conduct of the witnesses was unlawful and violated his constitutional rights against unreasonable search and seizure. It was not necessary, in order to raise the question for the plaintiff in error, to specifically point out by numbers the particular sections of the Constitution which he claimed was being violated; nor are we justified in assuming, as is argued by the Attorney General, that the plaintiff in error in his exceptions referred only to the provisions of the federal Constitution which are similar to those found in our state Constitution. It was sufficient to raise the question to call attention to the particular right which is guaranteed to the citizen under our own Constitution. If any constitutional right of plaintiff in error has been violated in this case, it is referable to section 7, and therefore it will be unnecessary to consider whether his rights under section 9 were also violated.

There is much apparent, if not actual, conflict in the decisions with respect to the admissibility of testimony obtained by unlawful arrest and search. This court had occasion to review the subject quite fully in the case of Cohn v. State, 120 Tenn. 61-75, 109 S. W. 1149, 17 L. R. A. (N. S.) 451, 15 Ann. Cas. 1201. The question has more recently come under review by the Supreme Court of the United States in the case of Amos v. U. S., 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. 654, decided February 28, 1921, published by Lawyers' Co-operative Publishing Company in Advance Sheets of April 1, 1921, and in Gouled v. U. S., 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647, decided at the same time and published in the same number of the Advance Sheets.

There is no conflict of authority upon the proposition that the constitutional provisions relied upon can only be invoked in this way to protect the citizen against the activities of the government. For example, the provisions of the federal Constitution can only be invoked as against the activities of the agencies of the federal government, and likewise the rights of the citizens involved in the constitutional provisions referred to are only protected against the actions of officers of the state government. It is only when persons are acting under color of authority from the government that evidence developed in violation of the law can be at all rejected. Cohn v. State, 120 Tenn. 61, 109 S. W. 1149, 17 L. R. A. (N. S.) 451, 15 Ann. Cas. 1201; Boyd v. U. S., 116 U. S. 619, 6 Sup. Ct. 524, 29 L. Ed. 746; Adams v. New York, 192 U. S. 586, 24 Sup. Ct. 372, 48 L. Ed. 575. None of the cases go to the extent of holding that because evidence has been obtained by unlawful means it is therefore inadmissible; it is only when evidence has been obtained by means of unlawful conduct of government officials in violation of the provisions of the Constitution referred to that it has been held inadmissible in any of the cases.

In the Cohn Case, supra, Cohn had been convicted for the offense of selling liquors and cigarette papers on Sunday, contrary to the statute. The case was made out against him by the testimony of John Yeaman, a deputy sheriff of Davidson county, and another witness. He testified in substance: That he and two deputies went to Cohn's place about 6 o'clock on Sunday morning, January 13, 1907, and mounted a stairway leading up by the side of the saloon, and, after they had reached a point about half 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 a large box of cigarette papers, and saw Lem Horton reach under the bar, take out this box, and sell a book...