State v. Aime

Decision Date15 November 1923
Docket Number4046
Citation220 P. 704,62 Utah 476
CourtUtah Supreme Court
PartiesSTATE v. AIME

Appeal from District Court, Fourth District, Uintah County; Elias Hansen, Judge.

John Aime was convicted of being a persistent violator of the act prohibiting the manufacture and sale of intoxicating liquors and appeals.

AFFIRMED.

Thos W. O'Donnell, of Vernal, for appellant.

Harvey H. Cluff, Atty. Gen., and W. Hal. Farr, Asst. Atty. Gen., for the State.

CHERRY J. WEBER, C. J., and GIDEON, THURMAN, and FRICK, JJ., concur.

OPINION

CHERRY, J.

The defendant was convicted under Comp. Laws Utah 1917, § 3345, of being a persistent violator of the act prohibiting the manufacture and use of intoxicating liquors, etc. (Comp. Laws Utah 1917, §§ 3341-3381) and appeals.

It is charged in the information that on September 26, 1922, at Uintah county, the defendant unlawfully, willfully, and feloniously had in his possession intoxicating liquor, and was then and there a persistent violator of the act prohibiting the manufacture, etc., of intoxicating liquor, having theretofore, on January 11, 1921, in the justice's court of Vernal precinct, in said county, been convicted of unlawfully manufacturing intoxicating liquors.

Previous to defendant's arrest, the sheriff of the county made a search of defendant's premises under a search warrant, and seized, among other things, a keg containing intoxicating liquor. It subsequently appeared that the affidavit upon which the search warrant was issued was not signed. Before the trial the defendant made a motion to suppress the evidence taken by the sheriff under the illegal warrant, which was denied. At the trial the keg and contents were admitted in evidence over the defendant's objections. The admission of the evidence so obtained is alleged as error. The Attorney General concedes that the search warrant was invalid, and the search and seizure under it illegal. Thus is presented the question: Is evidence taken from an accused person by means of an illegal search and seizure thereby rendered inadmissible against him? The question is an open one in this state, and its decision is of public importance. In recent years the subject has been before many American courts, and has been very thoroughly and exhaustively considered, resulting in a clearly defined conflict of opinion. See annotation, 24 A. L. R. 1408, where the cases are collated and classified.

Reference to the course and state of judicial opinion and a summary of argument will suffice for the purposes of this decision.

The general rule that the admissibility of evidence is not affected by the illegality of the means through which it had been obtained, is of long standing and general application. 1 Greenleaf on Ev. § 254a; 5 Jones on Ev. § 884; 2 Wharton, Crim. Ev. § 518g; 4 Wigmore on Ev. (2d Ed.) § 2183. The cases in which this rule has been approved and applied are too numerous to be cited here. It is enough to say it has had the sanction of practically all American courts, both state and federal. A list of the cases is published in 24 A. L. R. 1411. The rule and the legal principles supporting it are stated in 4 Wigmore on Ev. (2d Ed.) § 2183, as follows:

"Necessity does not require, and the spirit of our law does forbid, the attempt to do justice incidentally and to enforce penalties by indirect methods. An employer may perhaps suitably interrupt the course of his business to deliver a homily to his office boy on the evils of gambling or the rewards of industry. But a judge does not hold court in a street car to do summary justice upon a fellow passenger who fraudulently evades payment of his fare; and, upon the same principle, he does not attempt, in the course of a specific litigation, to investigate and punish all offenses which incidentally cross the path of that litigation. Such a practice might be consistent with the primitive system of justice under an Arabian sheikh, but it does not comport with our own system of law. It offends, in the first place, by trying a violation of law without that due complaint and process which are indispensable for its correct investigation. It offends, in the next place, by interrupting, delaying, and confusing the investigation in hand, for the sake of a matter which is not a part of it. It offends further in that it does this unnecessarily and gratuitously; for, since the persons injured by the supposed offense have not chosen to seek redress or punishment directly and immediately, at the right time and by the proper process, there is clearly no call to attend to their complaints in this indirect and tardy manner. The judicial rules of evidence were never meant to be an indirect process of punishment. It is not only anomalous to distort them to that end, but it is improper (in the absence of express statute) to enlarge the fixed penalty of the law, that of fine or imprisonment, by adding to it the forfeiture of some civil right through loss of the means of proving it. The illegality is by no means condoned; it is merely ignored. For these reasons it has long been established that the admissibility of evidence is not affected by the illegality of the means through which the party has been enabled to obtain the evidence."

In 1886 the rule was first questioned in Boyd v. U. S., 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, and by that decision and a series of cases following, notably, Weeks v. U. S., 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lbr. Co. v. U. S., 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319; Gouled v. U. S., 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647, and Amos v. U. S., 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654, the Supreme Court of the United States has developed a rule to the effect that under the Fourth and Fifth Amendments to the federal Constitution (affording immunity from unreasonable searches and seizures, and providing that no person shall in any criminal case be compelled to be a witness against himself) evidence obtained from the accused by an officer or agent of the government, by means of an illegal search and seizure is not admissible in a criminal action, over proper objections, against the accused. This rule has since been followed in the inferior federal courts, and has been adopted by some state courts. Callender v. State (Ind.) 136 N.E. 10; Youman v. Com., 189 Ky. 152, 224 S.W. 860, 13 A. L. R. 1303; People v. Marxhausen, 204 Mich. 559, 171 N.W. 557, 3 A. L. R. 1505; Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377; Hughes v. State, 145 Tenn. 544, 238 S.W. 588, 20 A. L. R. 639; State v. Wills, 91 W.Va. 659, 114 S.E. 261, 24 A. L. R. 1398.

The federal doctrine is vigorously assailed by Prof. Wigmore (4 Wigmore on Ev. [2d Ed.] § 2184) upon the grounds generally that it involves the trial of a collateral issue, erroneously assumes that the party from whom the evidence was illegally obtained has a right to its return, and creates an exception to a well-established rule resting upon "a reverence for the Fourth Amendment so deep and cogent that its violation will be taken notice of, at any cost of other justice, and even in the most indirect way."

The Fourth and Fifth Amendments to the federal Constitution do not apply to state governments or proceedings in state courts (Spies v. Illinois, 123 U.S. 131, 8 S.Ct. 22, 31 L.Ed. 80; Weeks v. U. S., 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177), and the decisions of the Supreme Court of the United States as to the admissibility of evidence under those amendments are not binding on state courts in interpreting similar provisions of their own state Constitutions (Banks v. State, 207 Ala. 179, 93 So. 293, 24 A. L. R. 1359; People v. Mayen, 188 Cal. 237, 205 P. 435, 24 A. L. R. 1383; State v. Tonn, 195 Iowa 94, 191 N.W. 530; Billings v. State [Neb.] 191 N.W. 721; Com. v. Wilkins, 243 Mass. 356, 138 N.E. 11).

Since the federal rule has been laid down, a large majority of the state courts which have spoken on the subject have declined to follow it, but have decided directly to the contrary, and held that evidence taken from an accused person by means of an illegal search and seizure in violation of state constitutional provisions similar to the Fourth and Fifth Amendments to the federal Constitution was not on that account inadmissible as evidence against the accused. The following array of state cases, all decided subsequent to Weeks v. U. S., and in conflict therewith indicate the general opposition to the rule of the federal courts: Banks v. State, 207 Ala. 179, 93 So. 293, 24 A. L. R. 1359; Benson v. State, 149 Ark. 633, 233 S.W. 758; People v. Mayen, 188 Cal. 237, 205 P. 435, 24 A. L. R. 1383; State v. Magnano, 97 Conn. 543, 117 A. 550; Calhoun v. State, 144 Ga. 679, 87 S.E. 893; State v. Anderson, 31 Idaho 514, 174 P. 124; People v. Paisley, 288 Ill. 310, 123 N.E. 573; State v. Tonn, 195 Iowa 94, 191 N.W. 530; State v. Van Wormer, 103 Kan. 309, 173 P. 1076, 180 P. 450; State v. Creel, 152 La. 888, 94 So. 433; Com. v. Wilkins, 243 Mass. 356, 138 N.E. 11; State v. Graham, 295 Mo. 695, 247 S.W. 194; State v. Hesse (Minn.) 191 N.W. 267; State v. Reed, 53 Mont. 292, 163 P. 477, Ann. Cas. 1917E, 783 (see State v. District Court, 59 Mont. 600, 198 P. 362); Billings v. State (Neb.) 191 N.W. 721; State v. Agalos, 79 N.H. 241, 107 A. 314; State v. Barela, 23 N.M. 395, 168 P. 545, L.R.A. 1918B, 844; People v. Esposito, 118 Misc. 867, 194 N.Y.S. 326; State v. Simmons, 183 N.C. 684, 110 S.E. 591; Knight v. State, 16 Okla. Cr. 298, 182 P. 736; State v. Ware, 79 Ore. 367, 154 P. 905, 155 P. 364; State v. Green (S.C.) 114 S.E. 317; City of Sioux Falls v. Walser, 45 S.D. 417, 187 N.W. 821; Welchek v. State, 93 Tex. Crim. 271, 247 S.W....

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