State v. Arnold, 5874

• Decision Date: 15 October 1932
• Docket Number: 5874
• Citation: 52 Idaho 349,15 P.2d 396
• Parties: STATE, Respondent, v. ANNIE E. ARNOLD, Appellant
• Court: Idaho Supreme Court

15 P.2d 396

52 Idaho 349

STATE, Respondent, v. ANNIE E. ARNOLD, Appellant

No. 5874

Supreme Court of Idaho

October 15, 1932

CRIMINAL LAW - INTOXICATING LIQUOR-SALE-EVIDENCE - SEARCHES AND SEIZURES-ARREST.

1. Evidence showing defendant's possession of liquor, jars and flasks held admissible, where tending to prove sale charged.

2. Defendant in liquor prosecution could not complain evidence was obtained through defective search-warrant, where no timely motion to suppress was made, and defendant consented to search, and search followed arrest.

3. Objection to evidence obtained through defective warrant must be made before trial, unless defendant first received notice thereof during trial, or proper motion was before trial and denied.

4. Where search and seizure of vessels for liquor were incidental to defendant's arrest, neither search-warrant nor defendant's consent was required.

5. Instruction in liquor prosecution not to consider, in determining offense charged, evidence concerning search of defendant's residence, if such evidence tended to establish separate offense, held correct.

APPEAL from the District Court of the Ninth Judicial District, for Madison County. Hon. C. J. Taylor, Judge.

Annie E. Arnold appeals from a conviction of unlawful sale of intoxicating liquor. Affirmed.

Affirmed.

C. L Hillman, for Appellant.

Where officers enter the defendant's home and place her under arrest, then notify her that they have a search-warrant for her premises and she tells them to go ahead and search, this does not amount to voluntary consent, and a search and seizure under those circumstances is unlawful if the search-warrant is void. (Atwood v. State, (Okla. Cr App.) 280 P. 319; Smith v. State, 34 Okla. Cr Rep. 434, 246 P. 1109; Hancock v. State, 35 Okla. Cr. Rep. 96, 248 P. 1115; Dixon v. State, 108 Tex. Cr. Rep. 650, 2 S.W.2d 272.)

Fred J. Babcock, Attorney General, and Z. Reed Millar, Assistant Attorney General, for Respondent.

If officers armed with a search-warrant present it to the owner of a house and are invited by such owner to enter, under such circumstances that they do not act under the warrant, evidence obtained as a result of the search is legally obtained. (State v. McLennan, 40 Idaho 286, 231 P. 718; State v. West, 42 Idaho 214, 245 P. 85; State v. Hagan, 47 Idaho 315, 274 P. 628; State v. Kaiser, 49 Idaho 351, 288 P. 154; State v. Dunn, 44 Idaho 636, 258 P. 553; State v. Beach, 51 Idaho 183, 3 P.2d 539.)

Objection to the use of evidence obtained through an illegal search must be made before trial or it is waived. (State v. Dawson, 40 Idaho 495, 235 P. 326; State v. Arregui, 44 Idaho 43, 52 A. L. R. 463, 254 P. 788; State v. Wansgaard, 46 Idaho 20, 265 P. 671; State v. Severns, 47 Idaho 246, 273 P. 940.)

LEE, C. J. Budge, Givens, Varian and Leeper, JJ., concur.

OPINION

LEE, C. J.

Defendant and appellant, Annie E. Arnold, was charged with selling intoxicating liquor to one Robert Smith. The state's evidence showed that upon March 20, 1931, Smith went to appellant's house and there purchased from her a bottle of beer, part of which he drank upon the premises; that later in the day he was apprehended with the partially emptied bottle upon him; that, armed with both a warrant of arrest and a search-warrant, certain officers about 1 or 2 o'clock P. M. on the following day proceeded to appellant's home, placed her under arrest and thereafter, before mentioning or ever exhibiting the search-warrant, secured her permission to make a search, which resulted in the discovery of 44 bottles of beer, a 15 or 20 gallon jar full of brew, and many empty gallon and half-gallon jars and flasks. From the judgment of conviction following a jury trial, she has appealed, assigning two errors only, that of the admission of all evidence touching the articles discovered in her house and the giving of state's Instruction No. 5.

It is insisted that, since the articles so discovered in appellant's home operated to establish possession, a separate and distinct offense from that charged in the information, all evidence concerning them was both incompetent and irrelevant. Many cases are cited in support of this contention but in none of them did the evidence assailed have any "logical connection" with the crime charged. Here, not only is there evidence of contraband available for sale in large quantity, but available in such close proximity to the sale alleged that the ordinary mind cannot escape putting two and two together.

Declaring that: "Where the defendant is charged in the information solely with a specific sale of intoxicating liquor it is error to admit evidence of unlawful possession of intoxicating liquor at a subsequent date," appellant submits with finality the announcement of Hughes v. State, (Okla. Cr. App.) 51 Okla. Crim. 11, 299 P. 240. In that case, possession was not involved at all: It was properly held that, when the state relies upon a particular sale, it is error to admit proof of other sales. But the court went on to say: "Evidence of an offense other than the one charged is admissible only when it tends to prove the offense charged." In State v. Dunn, 44 Idaho 636, 642, 258 P. 553, speaking of possession, evidence of which had been admitted over objection in a trial for an alleged sale, this court directly held: "The evidence was admissible as corroborative of the testimony as to the illegal sale charged in the information."

But, it is further contended that the evidence was inadmissible in that it was secured by means of a defective search-warrant. To this proposition, conceding that the search-warrant was...