Lucchesi v. Commonwealth

• Decision Date: 24 January 1918
• Citation: 122 Va. 872,94 S.E. 925
• Court: Virginia Supreme Court
• Parties: LUCCHESI . v. COMMONWEALTH.

94 S.E. 925

(122 Va. 872)

LUCCHESI .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 24, 1918.

Error to Hustings Court of City of Richmond.

Joseph Lucchesi was convicted of violation of the prohibition law, and he brings error. Affirmed.

L. O. Wendenburg, of Richmond, for plaintiff in error.

The Attorney General, for the Commonwealth.

PRENTIS, J. [1] The accused was convicted under the prohibition law (Acts 1916, p. 215) of unlawfully transporting ardent spirits in the state of Virginia. The first count of the indictment, charges him with bringing more than one quart of ardent spirits into the state from a point without to a point within this state for use within the state; the second count charges him with unlawfully bringing into the state from a point without the state to a point within this state more than one quart of ardent spirits within a period of 30 days; and the third count with unlawfully transporting ardent spirits from one point to another within this state.

Upon his arraignment he demurred to the indictment and each count thereof, which demurrer was overruled by the court, and this is assigned as error. It is sufficient to say, as to this assignment, that under section 39 of the act above referred to the 'indictment is sufficient. Pine & Scott v. Commonwealth, 93 S. E. 653; Commonwealth v. Hill, 5 Grat. (46 Va.) 682, 687; Hendricks v. Commonwealth, 75 Va. 934, 943; Devine v. Commonwealth, 107 Va. 860, 60 S. E. 37, 13 Ann. Cas. 361; State v. Miller, 24 Conn. 522; Tefft v. Commonwealth, 8 Leigh (35 Va.) 721; Taylor v. Commonwealth, 20 Grat. (61 Va.) 825; Dull v. Commonwealth, 25 Grat. (66 Va.) 965; Whitlock v. Commonwealth, 89 Va. 337, 15 S. E. 893; Benton v. Commonwealth, 91 Va. 782, 793, 21 S. E. 495.

Before the accused was arraigned, he petitioned the court to restore to him the suit case and the ardent spirits contained therein, which were taken from him by the policemen upon his arrest; a motion to like effect was made at the trial before the jury were sworn; and again, while the commonwealth was introducing its evidence in chief, he objected to introduction of the evidence that the suit case contained such ardent spirits.

The question raised has been frequently considered, and the overwhelming weight of authority sustains the admissibility of such evidence. In 35 Cyc. 1271, 1272, citing many authorities, this is said:

"It is well settled that a person legally arrested and in the custody of the law on a criminal charge may be subject to a personal search and examination, even though against his will, for evidence as to his criminality, and, if found, it may be seized without violating his constitutional rights. And if any person, even by illegal seizure, procure possession of any article, instrument, or document, the state may, notwithstanding such illegal seizure, use it, if necessary, as legitimate evidence against the person from whom it was so obtained to convict him of a crime, or upon an investigation against such person before a grand jury; it being an established rule that the court can take no notice of how such evidence was obtained, whether originating from a legal or an illegal source."

In 8 R. C. L. 196, this is said:

"While it is true that the search of a defendant without legal justification is a trespass and an indictable misdemeanor, there is no principle or theory upon which the state may be deprived of the right to employ the evidence of a criminal offense thus obtained. The law appoints the remedy for the redress of the wrong, but the exclusion of the evidence criminating the defendant is not within the scope of the remedy, or the measure of redress" —citing Shields v. State, 104 Ala. 35, 16 South. 85, 53 Am. St. Rep. 17; State v. Turner, 82 Kan. 787, 109 Pac. 654, 136 Am. St. Rep. 129, and note, 32 L. R. A. (N. S.) 772; Com. v. Tucker, 189 Mass. 457, 76 N. E. 127, 7 L. R. A. (N. S.) 1056; People v. Adams, 176 N. Y. 351, 68 N. E. 636, 63 L. R. A. 406, 98 Am. St. Rep. 675; Cohn v. State. 120 Tenn. 61, 109 S. W. 1149, 17 L. R. A. (N. S.) 451, 15 Ann. Cas. 1201, and note; State v. Slamon, 73 Vt. 212, 50 Atl. 1097, 87 Am. St. Rep. 711; Note 59 L. R. A. 470; State v. Edwards, 51 W. Va. 220, 41 S. E. 429,.59 L. R. A. 465; Note 87 Am. St. Rep. 714; State v. Sutter, 71 W. Va. 371, 76 S. E. 811, 43 L. R. A. (N. S.) 399.

Counsel for the accused relies upon the case of Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, as authority for the contrary view. Even if it were, it would be opposed to the overwhelming weight of authority. So far, however, from sustaining the proposition contended for, the contrary doctrine is expressly recognized in this paragraph of the opinion:

"What, then, is the present case? Before answering that inquiry specifically, it may be well, by a process of exclusion, to state what it is not It is not an assertion of the right on the part of the government, always recognized under English and American law, to search the person of the accused, when legally arrested, to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases. 1 Bish. on Cr. Proc. § 211; Wharton, Cr. PI. & Pr. (8th Ed.) § 60; Dillon v. O'Brien & Davis, 16 Cox, C. C. 245.; Ir. L. R. 20 C. L. 300; 7 Am. Cr. Rep. 66. Nor is it the ease of testimony offered at a trial where the court is asked to stop and consider the illegal means by which proofs, otherwise competent, were obtained, of which we shall have occasion to treat later in this opinion. Nor is it the case of burglar's tools or other proofs of guilt found upon his arrest within the. control of the accused."

What the court did hold in that case was that under the Fourth Amendment of the United States Constitution, upon seasonable application by the accused for the return of his letters and private documents, seized in his house during his. absence by a United States marshal holding no warrant for his arrest and none for the search of his premises, they should be returned to him, and could not be used against him in the criminal prosecution; and the opinion concludes with this:

"We therefore reach the conclusion that the letters in question were taken from the house of the accused by an official of the United States acting under color of his office in direct violation of the constitutional rights of the defendant, that, having made a seasonable application for their return, which was heard and passed upon by the court, there was involved in the order refusing the application a denial of the constitutional rights of the accused, and that the court should have restored these letters to the accused. In holding them and permitting their use upon the trial, we think-prejudicial error was committed. As to the papers and property seized by the policemen, it does not appear that they acted under any claim of federal authority such as would make the amendment applicable to such unauthorized seizures. The record shows that what they did by way of arrest and search and seizure was done before the finding of the indictment in the federal court, under what supposed right or authority does not appear. What remedies the defendant may have against them we need not inquire, as the Fourth Amendment is not directed to individual misconduct of such officials. Its limitations reach the federal government and its agencies"—citing Boyd's Case, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746.

The court itself then expressly limits the application of the case to the federal government and its agencies, and expressly disclaims any purpose to impair or disapprove the established doctrine that evidences of crime found in the possession of the prisoner, or upon his person, may be used in prosecutions against him, whether obtained from him legally or illegally.

The case of Town of Blacksburg v. Beam, 104 S. C. 146, 88 S. E. 441, In R. A. 1916E, 714, is also relied on. It is sufficient to say as to this case that the evidence there was obtained from the defendant's private room by search made in his absence before the warrant for his arrest had been issued and without a search warrant, and therefore differs from the case at bar, in which the suit case found in the possession of the prisoner was uot opened until after the warrant charging him with the crime had been issued and the accused arrested.

The facts of this case are that the accused was arrested at 2:05 a. m. on February 1, 1917, by two police officers of the city of Richmond, at Elba station. He had arrived upon an Atlantic Coast Dine train from Washington, D. C, which was going south, and had in his hand a suit case. One of the po-licemen accused him of having whisky therein. The accused replied that the suit case did not belong to him, and told the officers that he came from Washington and was on his way to North Carolina. Later he told the officers that he was going to his room at 24th and Main streets, Richmond, to get his clothes, and would take an early morning train for the South. He also explained his stopping at Richmond by saying that he found out that that train would not take him to Townsville, N. C., where he desired to go, and that he would have to take a 6:35 a. m. Seaboard Air Line train from Richmond in order to get to that place, and gave this as one of the reasons why he left the train in Richmond. After having first said that he had no whisky, he was then arrested and admitted that he had whisky in the suit case. After the warrant charging him with transporting whisky illegally had been issued, his suit case was opened by the officers, and found to contain 14 quarts of whisky and one quart of Italian bitters. It appeared that the accused had lived in Richmond a good many years, but he claimed that he had obtained work with a friend of...