Meisinger v. State

• Decision Date: 18 April 1928
• Docket Number: 23.
• Citation: 141 A. 536,155 Md. 195
• Parties: MEISINGER v. STATE.
• Court: Maryland Court of Appeals

141 A. 536

155 Md. 195

MEISINGER v. STATE.

No. 23.

Court of Appeals of Maryland

April 18, 1928

Appeal from Circuit Court, Cecil County; Lewin W. Wickes, Judge.

"To be officially reported."

George Meisinger was convicted of having in his possession intoxicating, spirituous, or fermented liquors with intent to sell them unlawfully, and he appeals. Affirmed.

Bond C.J., and Digges and Parke, JJ., dissenting.

Argued before BOND, C.J., and PATTISON, URNER, OFFUTT, DIGGES PARKE, and SLOAN, JJ.

Harold E. Cobourn, of Perryville, for appellant.

J Hubner Rice, Asst. Atty. Gen. (Thomas H. Robinson, Atty Gen., and Henry L. Constable, State's Atty., of Elkton, on the brief), for the State.

PATTISON J.

On September 19, 1927, the appellant, George Meisinger, was indicted in the circuit court for Cecil county for having in his possession, in said county, intoxicating, spirituous, or fermented liquors, with intent then and there to unlawfully sell the same within the limits of said county, in violation of sections 179 and 180 of chapter 532 of the Acts of 1898.

The appellant moved to quash the indictment, and, upon his motion being overruled, he pleaded "not guilty." The case was tried by the court, sitting as a jury, and the defendant was found guilty and sentenced to confinement in the Maryland House of Correction for six months. From that judgment this appeal was taken.

In the course of the trial two exceptions were taken to the admission of evidence procured under a search warrant issued by a justice of the peace, at the instance of the state's attorney for Cecil county, directed to the sheriff of that county, to search the premises of the appellant in said county for intoxicating liquors and to seize the same if found.

The question presented for our decision, both by the motion to quash and the exceptions to the evidence, arises from the opposite contention of the parties as to the admissibility of evidence secured under and by virtue of what is conceded to be an illegal search warrant.

This question has been the subject of a great number of decisions by the Supreme Court, the federal courts, and the appellate courts of many, if not all, of the states. These decisions show a great diversity of opinion, and it is impossible to harmonize the opinions or the reasoning employed therein as expressed by the various courts, or even in some instances to show consistency between the decisions of the same court. We find that not infrequently courts, both federal and state, have expressed one view in one opinion, later reversing that decision, and later still returning to the opinion first expressed. In a copious note to the case of State v. Wills, 91 W.Va. 659, 114 S.E. 261, 24 A. L. R. 1398, decided in 1922, the annotator has collected the cases supporting each side of this contention, and at page 1409 states:

"It is, or at least was, a general rule of evidence that its competency is not affected by the fact that it was wrongfully obtained; or, to state it more fully, that the court in which papers or other articles are offered in evidence can take no notice whether they were lawfully or unlawfully obtained, nor will it frame a collateral issue to determine that question. What is the effect upon this rule of evidence of the rights secured by the Fourth Amendment to the United States Constitution, and by the similar provisions in state constitutions? Up to within a few years there were but few cases in which the constitutional right had been held to interfere with the rule, but in 1914 the decision by the Supreme Court of the United States in the Weeks Case, infra [[232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177], held the constitutional rights supreme when asserted before trial, and the later cases in that court in effect hold that the constitutional right is to be recognized though first asserted at the trial."

Since these decisions of the Supreme Court a number of cases in state courts have taken a similar view. The correctness of the position taken in these later cases is denied, and the earlier rule defended by Prof. Wigmore in an article appearing in the American Bar Association Journal, August 1922, p. 479, which article was replied to in the following October number of the same journal by Mr. Connor Hall, each author vigorousy contending for the correctness of his view. The authorities are divided into those supporting what may be termed the old doctrine--that is, the rule that such evidence is admissible--and those adhering to the new rule, deciding against its admissibility. Among the former this court is to be found; it having definitely determined that the rule which allows evidence of this character to be admitted is in force for the guidance of the courts and the admission of testimony therein in this state. This conclusion was reached by our predecessors in the case of Lawrence v. State, 103 Md. 17, 63 A. 96, and must be taken now as conclusive on the question, so far as this state is concerned. It was said in that case:

"In the recent and valuable work on Evidence of Prof. Wigmore, it is affirmed, upon an exhaustive and discriminating review of the authorities, that it is universally conceded that chattels and documents in the possession of an accused party are within the protection of the constitutional provisions in question, if sought to be produced in evidence through process against him as a witness; but if obtained from him otherwise than by the use of such process they are not within the privilege which these provisions confer. 4 Wigmore on Ev. § 2264."

The court then adopts the rule as laid down in 1 Greenleaf on Evidence, § 254, that:

"Though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The court will not take notice of how they were obtained, whether lawfully or unlawfully, nor will it

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