Robertson v. State
| Decision Date | 26 October 1927 |
| Citation | 114 So. 534,94 Fla. 770 |
| Parties | ROBERTSON v. STATE. |
| Court | Florida Supreme Court |
Error to Court of Record, Escambia County; A. G. Campbell, Judge.
Willie Robertson was convicted of the possession of intoxicating liquor, and he brings error.
Affirmed.
Syllabus by the Court
Defendant may waive right to have only competent evidence introduced defendant waives right to have only competent evidence introduced by failing to make proper and timely objections. While the defendant in a criminal prosecution has the right to insist that only competent evidence be introduced against him he may waive that right, and he does waive it by failing to make proper and timely objections.
Motion to suppress certain evidence before trial is not tantamount to, nor proper substitute for, objection to such evidence at trial. In a prosecution for the unlawful possession of intoxicating liquor, a motion to suppress certain evidence upon the ground that it was procured by means of an unlawful search and seizure, when such motion is interposed and overruled prior to the trial, is not tantamount to, nor a proper substitute for, an objection to the questioned evidence at the trial upon the issues.
Evidence obtained by unlawful search on timely objection is not admissible to prove guilt of owner of house searched defendant, not making proper and timely objection to evidence obtained by illegal search, waives right to its exclusion (Const. Declaration of Rights, §§ 12, 22). When evidence which has been procured by an unlawful search is seasonably objected to, it should not be admitted to prove the guilt of one whose house has been unlawfully searched, but the admissibility of such evidence must be seasonably drawn in question by proper and timely objection, otherwise the defendant waives the right to have it excluded.
Safer practice is to move prior to trial to suppress or restore evidence claimed to have been obtained by unlawful search although such motion is not always indispensable. When the admissibility of evidence depends upon the legality of the search and seizure by which it was procured, and the latter question in turn depends upon the determination of a question of fact which is susceptible of controversy, the better and safer practice is to move in advance of trial to suppress or restore the evidence in question, so that it will not become necessary to interrupt the progress of the trial for the determination of a controverted collateral issue, although such a preliminary motion is not always indispensable.
Evidence on issues, not that presented on preliminary or ancillary motion to suppress evidence, determines validity of conviction for possessing intoxicating liquor. In a prosecution for the unlawful possession of intoxicating liquor, the evidence adduced upon the issues, and not that presented upon the hearing of a preliminary or ancillary motion to suppress certain portions of the evidence, must control in determining the sufficiency of the evidence to sustain the verdict.
In absence of objection to evidence of unlawful possession of liquor because obtained by illegal search, whether overruling motion to suppress such evidence before trial was error is immaterial. In a prosecution for the unlawful possession of intoxicating liquor, when the defendant makes no objection at the trial to the admission of the state's evidence of such unlawful possession, whether or not the trial court erred in overruling a motion to suppress such evidence, which motion was interposed and overruled prior to arraignment of the defendant, becomes merely an academic and immaterial question.
COUNSEL J. McHenry Jones and J. Montrose Edrehi, both of Pensacola, for plaintiff in error.
J. B. Johnson, Atty. Gen., and H. E. Carter, Asst. Atty. Gen., for the State.
The plaintiff in error, whom we shall designate the defendant, as he was in the court below, prosecuted this writ of error from a judgment convicting him of the unlawful possession of intoxicating liquor.
Prior to his arraignment, the defendant moved the court 'to suppress all evidence discovered in the search of the defendant's private dwelling house by Deputy Sheriffs M. D. McArthur and L. B. Morgan,' the grounds of said motion being, in substance, that the evidence which forms the basis of this prosecution was obtained through an unlawful search of the defendant's private dwelling, in that such search was conducted without a search warrant and was not made as an incident to a lawful arrest of the defendant.
In support of that motion, testimony ore tenus was taken before the trial judge prior to the impaneling of the jury. From this testimony it appears that the two deputy sheriffs named in the motion were stationed at a recreation place for colored people near Pensacola, where on the evening in question a dance was in progress, and where a large number of people had congregated. The officers noticed 'a good deal of drinking around the dance hall, and lots of bottles scattered around.' They undertook to ascertain the source of supply of the intoxicating liquor. Their attention was directed toward a nearby house, by reason of the fact that a large number of people were passing to and from the house; one of such visitors being stopped by the officers and discovered to be in possession of a bottle of intoxicating liquor. By lying down on the porch of the house and looking inside through a crack under the door, and also by a view of the inside of the house through one of the windows, the officers saw the defendant and another person inside the house; the former being engaged in pouring a liquid from a large jug into Coca-Cola bottles in which it was being dispensed to those calling at the house. The odor of 'moonshine liquor' was very strong. One of the officers, while standing outside a window of the house, received direct from the hands of the defendant's companion in the house a small bottle of the liquor. The officers thereupon at the point of a pistol compelled the occupants of the house to admit them thereto, where they arrested the defendant and possessed themselves of the jug and Coca-Cola bottles just mentioned. The jug contained moonshine liquor. The officers had no search warrant. The defendant testified without contradiction that the house which was thus scrutinized and entered by the officers was his dwelling house; that he carried on no business there; that it was 'just a place where he lived'; and that he had lived there for some time. The foregoing evidence was taken upon the motion to suppress, not upon the issues.
The trial judge denied the motion to suppress, to which order the defendant excepted. Thereupon the defendant was arraigned and pleaded not guilty. A jury was then sworn to try the issues. To support the information the state introduced as a witness one of the deputy sheriffs previously mentioned, who again described, in the presence of the jury, the conditions at the recreation resort, the manner by which his attention and suspicions were directed toward the house where he found and arrested the defendant, how he and his companion looked under the door and through the window of the house, how they detected a strong odor of moonshine liquor, how they saw the defendant pouring liquor from a large jug into small bottles, and how they then entered and arrested the defendant and the latter's companion and took possession of the liquor and bottles found there. The testimony concerning the circumstances just referred to was substantially the same as the testimony given upon the motion to suppress. This was the only witness for the state. The defendant introduced no evidence whatever upon the issues. In the testimony upon the issues, it does not appear, either by cross-examination of the state's witness or otherwise, that the deputy sheriffs were not armed with a valid search warrant when they entered the house in question, nor does it appear that such house was the dwelling of this defendant or any other person. No objection was made by the defendant to the state's evidence upon the issues, save one objection which was directed to a matter extraneous to the proposition relied on for reversal.
The errors assigned are that the trial court erred in denying the defendant's motion to suppress the evidence and in denying the defendant's motion for a new trial. The latter motion was based primarily upon the grounds that the conviction was obtained by the use of evidence which was illegally acquired 'and which was properly objected to,' and that the evidence was insufficient to sustain the verdict.
While the defendant in a criminal prosecution has the right to insist that only competent evidence be introduced against him, he may waive that right, and he does waive it by failing to make proper and timely objections. Ordinarily, and subject certain exceptions not pertinent here, this principle applies to evidence incompetent under constitutional as well as statutory provisions and the general rules of evidence. Martin v. State (Okl. Cr. App.) 232 P. 966; State v. Hartsfield, 188 N.C. 357, 124 S.E. 629; Sedgwick, Stat. and Const. Law, p. 111; 6 R. C. L. 93; 27 R. C. L. 906. See, also, as illustrating the principle, State v. Dowling (Fla.) 107 So. 267. The reasons underlying the rule just stated differ from those which occasion the rule forbidding the waiver by an accused of certain constitutional rights resting upon the public policy of the state as distinguished from a right personal to the accused. State v. Hartsfield, supra. Error, if any, in admitting evidence is waived by failure to object thereto. See Webb v. State (Okl. Cr. App.) 242 P. 784.
Although the defendant, prior to his arraignment, interposed a motion to...
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