State v. Brown

• Decision Date: 13 August 1924
• Docket Number: 11572.
• Citation: 124 S.E. 87,129 S.C. 286
• Parties: STATE v. BROWN.
• Court: South Carolina Supreme Court

124 S.E. 87

129 S.C. 286

STATE v. BROWN.

No. 11572.

Supreme Court of South Carolina

August 13, 1924

Appeal from General Sessions Circuit Court of Orangeburg County Octavus Cohen, Special Judge.

Plott Brown was convicted of receiving stolen goods, knowing that they had been stolen, and he appeals. Affirmed.

Brantley & Zeigler, of Orangeburg, for appellant.

A. J Hydrick, Sol., of Orangeburg, for the State.

COTHRAN J.

Appeal from conviction and sentence under an indictment charging the defendant with having received stolen goods, knowing that they had stolen. It appears that the store of one Kalinsky had been broken into and goods abstracted therefrom; about a week after the burglary, Kalinsky procured a search warrant from a magistrate, and under it the dwelling house of the defendant was searched, and various articles, identified as the property of Kalinsky, were found.

Before the trial of the case in the court of general sessions (Hon Octavus Cohen, special judge, presiding) was entered upon, the defendant presented a petition to the court alleging that the search warrant referred to was illegal upon several grounds set forth, and praying that it be so declared; that the search warrant be quashed, and declared inadmissible in evidence; that the search warrant be declared illegal, and violative of the defendant's constitutional rights; that the articles found be declared inadmissible in evidence; and that all evidence obtained by means of said search warrant or based thereon be declared to be inadmissible in evidence upon the trial of the case. His honor, the presiding judge, dismissed the petition, holding that, while the said warrant was shown to have been improperly issued, the articles discovered in the defendant's house, through the entry under such illegal warrant, would be admissible. The trial then proceeded, and during it the counsel for the defendant "objected to all testimony relating to the search of the defendant's house, objected to the goods found in the defendant's house being offered in evidence, and objected to all the testimony obtained by said search and relating thereto." All of these objections were overruled by the presiding judge.

The sole question in the case is whether or not the constitutional rights of the defendant have been invaded by the admission of the evidence objected to. The point is concluded by recent decisions of this court, that "real" evidence obtained from the possession of the defendant, as the result of an illegal search and seizure (and therefore "unreasonable" within the terms of the Constitution), is nevertheless admissible upon the trial of the defendant, charged with a crime with which such evidence is reasonably connected. State v. Kanellos, 124 S.C. 514, 117 S.E. 640; State v. Prescott, 125 S.C. 22, 117 S.E. 637; State v. Maes (S. C.) 120 S.E. 576.

The point, however, raised by the appellant is that the defendant has the right by a preliminary motion or petition: (a) Where the "real" evidence is his personal property, to have the court order its return to him that he may put it out of the power of the State to produce it, and offer it in evidence; or (b) where it is not his personal property, to have the court declare in...