Scaffido v. State
Decision Date | 01 May 1934 |
Citation | 254 N.W. 651,215 Wis. 389 |
Parties | SCAFFIDO v. STATE. CICERRELLO v. STATE. |
Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Error to review judgments of the Municipal Court of Milwaukee County; Max W. Nohl, Judge. Affirmed.
Prosecution and conviction of Joseph Scaffido and Tony Cicerrello on the charge of carrying concealed weapons in violation of section 340.69, Stats. Prior to the trial pleas in abatement and motions to suppress evidence had been overruled by Judge George A. Shaughnessy. The pleas and motions, and the assignment of error in respect to the trial were based on the defendants' contention that the evidence, which was relied upon to sustain the convictions, was procured on an illegal search of the defendants while not lawfully under arrest.
Rubin & Zabel, of Milwaukee (W. B. Rubin, of Milwaukee, of counsel), for plaintiffs in error.
James E. Finnegan, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and William A. Zabel, Dist. Atty., and Herman A. Mosher, Deputy Dist. Atty., both of Milwaukee, for the State.
The evidence upon which the court concluded that there had been no illegal search of the defendants fairly established the following facts. Shortly after midnight on January 24, 1933, the police department of the city of Milwaukee was informed by telephone that an assault with intent to rob had been committed in a nearby suburb by a group of five men, who used an automobile, which was described as a Hudson, bearing license No. 76298; and a description given of one of the men was believed by the police department to fit the defendant Joseph Scaffido. There was an immediate radio broadcast by the police department of that information, and that was heard by Officers John J. McGarvey and John Flannery, who were detectives, and also by other officers of the department. At about 1:45 a. m. those officers found a Hudson automobile with license No. 76298 at a soft drink parlor in Milwaukee. McGarvey, Flannery, and five other officers entered that place and found Scaffido seated with Cicerrello and three other men in a booth. McGarvey said to the five men, “I place you under arrest for assault with intent to rob.” Then without asking their consent, or having any warrant for their arrest or search, McGarvey searched Scaffido and Flannery searched Cicerrello, with the result that a revolver was found concealed in an inside pocket of the coat of each defendant. The five men were taken to the police station and warrants were issued for the arrest of the defendants and two of the other men on the charge of carrying concealed weapons. The fifth man was arrested on the charge of vagrancy. Convictions followed on all of those charges. However, as the victim of the assault and robbery declined to verify a complaint, no warrant was ever issued on that charge.
Defendants concede in their brief that
That recognizes the principles approved in Thornton v. State, 117 Wis. 338, 93 N. W. 1107, 1110, 98 Am. St. Rep. 924:
* * *”
To the same effect see People v. Chiagles, 237 N. Y. 193, 142 N. E. 583, 32 A. L. R. 676, 679.
[1][2] However, defendants contend that at the time of the search they were not under lawful arrest, and that, consequently, the search was made in violation of sections 8 and 11 of article 1, Wis. Constitution, and article 4, of the Amendments to the U. S. Constitution, and was illegal.
As the reported assault and robbery constituted a felony, it was within the authority of Officers McGarvey and Flannery to arrest the defendants on that charge without a warrant, if on the facts which had been communicated to and broadcast by the police department, and the coinciding facts discovered by them upon finding the Hudson automobile with the described license number, and also finding the described man in the group of five men assembled in the booth, they had probable cause to believe or to...
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