People v. Cardella, 134.

• Decision Date: 28 January 1926
• Docket Number: No. 134.,134.
• Parties: PEOPLE v. CARDELLA et al.
• Court: Michigan Supreme Court

233 Mich. 505

207 N.W. 141

PEOPLE

v.CARDELLA et al.

No. 134.

Supreme Court of Michigan.

Jan. 28, 1926.

Error to Circuit Court, St. Clair County; Eugene F. Law, Judge.

Joe Cardella and Tom Medo were convicted of having in their possession with criminal intent certain burglar tools, and they bring error. Affirmed.

Argued before BIRD, C. J., and SHARPE, SNOW, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ.Herman H. Greenberg, of Detroit, for appellants.

Robert M. Soutar, Pros. Atty., and L. O. Telfer, Asst. Pros. Atty., both of Port Huron, for the People.

STEERE, J.

Defendants were tried by jury, convicted, and sentenced in the circuit court of St. Clair county for having in their possession with criminal intent certain described burglar tools in violation of the statute in such case made and provided. When arraigned they declined to plead, and a plea of not guilty was entered in their behalf by the court. Their counsel then interposed a motion to quash the information and discharge defendants on the ground that the evidence against them had been obtained by an unlawful search and seizure. This motion was denied and the case brought on for trial. Defendants did not take the stand, and no testimony was introduced in their behalf.

Testimony introduced by the prosecution showed that defendants were arrested about 2 o'clock in the morning of May 9, 1924, in the city of Port Huron by Lieutenant John Mills and Patrolman Thomas Davidson, of the police department of that city, while the latter were patrolling, in a Ford car, a thoroughfare called Military street or road which extended through and beyond Port Huron, directly connecting it with Detroit. It was a dark and rainy night, and the officers were in a section of the city through which a regular patrol had been established because of burglaries committed in that locality. They were driving south, watching as they drove, and when in the vicinity of South park Lieutenant Mills noticed an unlighted automobile just off the street on the east side, in an alley, close along the south side of an Oldsmobile service station and garage, which was closed and unlighted. Remarking to his brother officer, ‘There is a car there,’ he swung around in front of the alley, and they alighted to investigate, turning their flashlight on the alley as they came up to it. Davidson was ahead, and went to the front of the car, which was headed away from the street, while Mills stopped behind it, turning his flashlight on its rear. They found it to be a large Cadillac touring car, with the two defendants sitting in the front seat. Davidson asked them what they were doing there at that time of night, to which one of them replied that their car was ‘on the bum’ and had broken down.

As Mills came up to the rear of the car and turned his flashlight upon it he saw lying on its floor in the rear most of the burglar tools which defendants were convicted of having unlawfully in their possession. As soon as Mills saw them he recognized them as burglar tools, and remarked, ‘You have got a fine bunch of tools here.’ He ordered defendants to get out of the car, and as they did so the officers placed them under arrest and handcuffed them together. Mills then opened the door of the car and made some further investigation, finding in it, amongst other things, two loaded revolvers, one in a flap pocket by the driver's seat and one in the rear of the car. Cartridges which fitted them were also found in the car and in defendant Medo's pocket. Mills then took defendants to the police station in his Ford car, while Patrolman Davidson followed in defendants' Cadillac, which he had no trouble in starting and driving. Defendants were booked on the blotter of the police station and locked up. Complaint followed charging them with the offense of which they were convicted, and the regular proceedings were had to bring the case to trial.

Preliminary to a complaint being made against them, they were separately interviewed by the prosecuting attorney in the presence of a captain of the police force and a stenographer, who took down what was said. They were first duly cautioned as to their rights, and told that any statements that they made might be used in evidence against them. Each gave his explanation of how they came to be where they were found, denied any knowledge of the burglar tools being such, or any guilty purpose or intent in that connection. It is sufficient to note that their stories failed to harmonize in various material particulars.

Upon the trial the burglar tools so seized were introduced in evidence, against the objection of defendants' counsel on the ground that they were secured by an unlawful search and seizure. Defendants' assignments of error center in the main to that proposition.

Lieutenant Mills, who was an officer of 19 years' experience, testified that an oil station across the street had been burglarized and the Standard Oil Works near by had been broken into and the combination knocked off the safe before that time; in his experience as an officer he had become familiar with the kind of tools adapted to and used in committing burglaries, and recognized those in defendants' car were such as soon as he saw them. He said that ordinarily a person driving along the street at that time of night would not notice this car at all, as it was up in an alley close against the building, but on their patrol they were watching out for anything unusual, were there ‘to look over anything in sight,’ and he caught a glimpse of this unlighted car in an unusual place and condition as they drove along. Of the investigation which followed he said:

‘We saw the car standing there with no lights, and thought there was somebody trying to break in, so we jumped out of our car and went over to their car. * * * That is a public alley. It was a dark and rainy night. The first thing I did when I got to the car was to flash my light on the back end of the car. I was on the left-hand side of the car, the south side. Mr. Davidson went ahead and around on the other side of the car. I flashed my light on the back end of the car; that was a flashlight. I saw those tools lying there in the back end of the car on the floor. This sledge hammer, muffled hammer, and this jack and the monkey wrench were in the back end of the car, and these bolts were in the front end of the car. A big revolver was in the front end of the car. I knew what these tools were adapted for when I saw them. That muffled hammer is used so it won't make any noise in knocking the combination off a safe; this jack bolts down over the combination of the safe, like this.’

He further explained in detail the nature and manner of using the different tools seized, as did another officer of 30 year's experience.

When the officers discovered this unlighted car in an alley close under the shadow of a garage building and filling station, which was not lighted or in use at that time of night, in...