Smuk v. People
| Decision Date | 11 September 1922 |
| Docket Number | 10413. |
| Citation | 72 Colo. 97,209 P. 636 |
| Parties | SMUK v. PEOPLE. |
| Court | Colorado Supreme Court |
Rehearing Denied Oct. 2, 1922.
Department 2.
Error to District Court, Gunnison County; Straud M. Logan, Judge.
John Smuk was convicted of the unlawful possession of intoxicating liquor, and he brings error and petitions for a writ of supersedeas.
Writ denied, and judgment affirmed.
George A. Shipley, of Paonia, for plaintiff in error.
Victor E. Keyes, Atty. Gen., and Charles R. Conlee, Asst. Atty Gen., for the People.
Plaintiff in error, hereinafter called defendant, was convicted of the unlawful possession of intoxicating liquors, and brings error.
A search warrant was issued, on affidavit, under which officers proceeded to the house of defendant, which was used as a boarding house, and there found a bottle of liquor, which defendant stated was whisky kept for his own use. They found also a considerable quantity of what defendant said was 'home brew.' A sample of this liquor, and the bottle said to contain whisky were admitted in evidence, as was also testimony that defendant had designated them as above stated, to all of which objection was made by defendant's counsel. The admission of this evidence is the principal error here urged.
It is contended that the affidavit for the warrant was fatally defective, in consequence of which fact the evidence obtained was not admissible. Many cases are cited on the sufficiency of the affidavit for a warrant, on which point the court held with defendant. The evidence was held admissible, however, on the ground that the search was not made under the warrant but upon the invitation, or at least with the consent, of the defendant.
A deputy sheriff testified that he went to the defendant's house, somewhat in advance of another deputy who had the search warrant, and told defendant the object of his visit; and that the other officer had the warrant; that defendant said, 'All right, come in and search; I haven't anything to be afraid of;' that defendant went into the house with the officers, and accompanied them through the rooms. The deputy sheriff, who had the warrant testified that, when he told defendant that he had a warrant to search the house, the latter said, 'All right, I ain't got nothing.' Although defendant testified in his own behalf, he did not contradict this testimony, that he had invited the officers into his house and consented to the search.
That the officers supposed they were acting under a valid warrant is immaterial. It is universally held that the constitutional provision here invoked is intended 'to prevent the violation of private security in person and property and unlawful invasion of the sanctity...
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Silverstein v. State
...Criminal Evidence, (3rd ed.) sec. 749, pp. 1047-1048 (3); sec. 750. See In re Ajuria, 57 Cal.App. 667, 207 P. 515; Smuk v. People, 72 Colo. 97, 209 P. 636; Com. v. Smith, 166 Mass. 370, 44 N.E. 503, Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231; Carroll v. United States, ......
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State v. Ray, 741
...of the arrest of the defendant. Therefore, the validity of the search depends on the consent given by Mrs. Henderson. See Smuk v. People, 72 Colo. 97, 209 P. 636. The record clearly shows that Mrs. Henderson did give her consent to the search on both occasions, and it is also clear that she......
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People v. Michael
...92 L.Ed. 436; Waxman v. United States, 9 Cir., 12 F.2d 775, with Pritchett v. State, 78 Okl.Cr. 67, 143 P.2d 622, 623-625; Smuk v. People, 72 Colo. 97, 209 P. 636, 637, with Salata v. United States, 6 Cir., 286 F. 125, 127, and may reflect imperfectly the factual situations before the court......
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People v. Robinson
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