Shields v. State

Citation104 Ala. 35,16 So. 85
PartiesSHIELDS v. STATE.
Decision Date09 August 1894
CourtAlabama Supreme Court

Appeal from Wilcox county court; Joseph T. Beck, Judge.

Bryant Shields was convicted of carrying a concealed weapon, and appeals. Reversed.

The state introduced as a witness M. E. Curtis, sheriff of Wilcox county, who testified that the defendant, with two others came to the jail of Wilcox county, and asked to be allowed to see a cousin, who was then a prisoner confined in said jail that said Curtis told them that they could not go into the prison part of the jail until he had searched them; that one of the party was searched, and that when the defendant halted the witness Curtis remarked, "If you wish to go in, come on, and, if you do not wish to go, then go out;" that the defendant then started to go into the prison part of the jail; and that thereupon the sheriff took hold of him, and against his consent, searched him, and found a pistol concealed about his person. The defendant objected to this testimony on the grounds (1) that the sheriff had no right or authority to search him; (2) because the searching of defendant's person, and finding the pistol concealed, by the said sheriff, was without his consent or permission, and therefore the testimony relating thereto is inadmissible. The court overruled the objection and motion of the defendant and to this ruling the defendant duly excepted. The defendant, testifying in his own behalf, stated that the pistol which was found upon his person was a broken pistol, which he was carrying to the gunsmith to be repaired, and that the said sheriff searched him against his consent. Upon the introduction of all the evidence the court charged the jury that if they believed the evidence they must find the defendant guilty. The defendant duly excepted to the giving of this charge.

Peter M. Horn, for appellant.

Wm. L. Martin, Atty. Gen., for the State.

BRICKELL C.J.

The proposition underlying the objections to the admissibility of the evidence of the discovery of the pistol concealed about the person of the defendant, and which is pressed in the argument of counsel, is that the search was unauthorized and illegal, and, as it was unauthorized and illegal, the admission of evidence obtained by it, to fix the guilt of a criminal offense upon the person, searched, is violative of the constitutional guaranty that the accused shall not be compelled to give evidence against himself, and of the further guaranty "that the people, shall be secure in their persons, homes, papers and possessions, from unreasonable seizure or searches," etc. Kindred propositions, in varying forms and under varying facts, have been drawn to the attention and consideration of this court. Chastang v. State, 83 Ala. 29, 3 So. 304; Terry v. State, 90 Ala. 635, 8 So. 664; Scott v. State, 94 Ala. 80, 10 So. 505; French v. State, 94 Ala. 93, 10 So. 553; Sewell v. State (Ala.) 13 So. 555. In neither of these cases was the search, or the mode in which the evidence was obtained deemed illegal. In Terry v. State, supra, which, like the case before us, was an indictment for the offense of carrying concealed weapons, the court observed: "We used not say what would be our ruling if the pistol had been discovered by the officer in a search of the defendant's person, or if the defendant had surrendered the pistol in obedience to the command of the officer having him in charge. The question is not presented, and we leave it undecided." In the later case (Sewell v. State, supra),-a like indictment,-the court said: "We presume the objection [to the admissibility of the evidence] is based upon the proposition that the discovery of the guilt was brought about by the unlawful exercise of official authority and power on the part of the constable, and that it would be against public policy, if not an invasion of the constitutional immunity of the citizen, to suffer information so obtained to be used against the defendant. This case does not call for any decision on that subject, and we declare no rule touching the admissibility of evidence so obtained." If, as is insisted, the search of the person of the defendant was unauthorized and illegal, the question, a decision of which was heretofore pretermitted, is now unavoidable, and that it was unauthorized and illegal we cannot doubt. The sheriff is the jailer, having the legal custody and charge of the county jail, and of the prisoners therein confined. He may commit the custody and charge to a jailer of his appointment, who becomes his deputy or substitute, for whose acts he is civilly responsible. Cr. Code, § 4535. Charged with the duty of protecting and preserving the jail, and of keeping the prisoners safely until of their custody he is relieved by legal authority, of necessity, the jailer, whether he be the sheriff or a substitute of his appointment, has a large discretion in determining at what time, under what circumstances, and what persons, not having legal authority, he will permit to enter the jail or to have access to the prisoners; a discretion it is not contemplated he will exercise arbitrarily or capriciously, but which at last he must exercise according to his own conscience and judgment, uncontrolled by the conscience and judgment of others. If he apprehends injury to the jail, or the introduction therein of things forbidden, or the instrumentalities of escape, or detriment to a prisoner, he may require whoever may seek admission into the jail to submit their persons to a proper, orderly examination or search. The examination or search must be voluntary on the part of such persons. If they do not consent, admission to the jail or access to the prisoners may be refused. If they have entered, they may be required to depart. If they persist in remaining, they may be treated as trespassers and ejected, the jailer using no more force than is necessary to eject them. But he is without legal authority, by force, to search or examine them, or to compel them to submit their persons to search or examination, even though he may suspect them of crime or of criminal purposes. If, by force, he makes search of their persons, or compels them to submit to it, he becomes a trespasser, and for the wrong is civilly answerable; and he commits an indictable misdemeanor, the offense being aggravated because of his official relation, and the abuse of its rightful powers.

While it is true the search of the defendant was without legal justification, a trespass, and an indictable misdemeanor, we know of no principle or theory upon which the state may be deprived of the right to employ the evidence of a criminal offense thus obtained. As is observed by the supreme court of Illinois in Gindrat v. People, 138 Ill. 111, 27 N.E. 1085 "Courts, in the administration of the criminal law, are not accustomed to be oversensitive in regard to the sources from which evidence comes, and will avail themselves of all evidence that is competent and pertinent, and not subversive of some constitutional or legal right." The state had no connection with, and had no agency in, the wrong committed by the sheriff. 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. Evidence is not infrequently obtained by methods which are reprehensible in good morals, offensive to fair dealing, subjecting it to unfavorable inferences the party relying upon it must neutralize, to entitle it to full credence. And evidence is sometimes obtained under circumstances which meet with the unqualified disapprobation of the courts. The evidence, however unfairly and illegally obtained, is not subject to exclusion, if it be of facts in themselves relevant, except when a party accused of crime has been compelled to do some positive, affirmative act inculpating himself, or an admission or confession has been extorted from him by force, or drawn from him by appliances to his hopes or fears. 1 Greenl. Ev....

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