State v. Chin Gim

Decision Date04 April 1924
Docket Number2592.
Citation224 P. 798,47 Nev. 431
CourtNevada Supreme Court

Appeal from District Court, Elko County; Wm. E. Orr, Judge.

Chin Gim was convicted of possessing cocaine and opium without written order or prescription therefor, and he appeals. Affirmed.

E. P Carville, of Elko, for appellant.

H. U Castle and W. T. Mathews, Dist. Atty., both of Elko, and M A. Diskin, Atty. Gen., and Thomas E. Powell, Deputy Atty Gen., for the State.


Appellant was convicted in the district court of Elko county of violating a statute making it a gross misdemeanor for any person to have in his possession cocaine and opium without the written order or prescription of a physician, dentist, or veterinary surgeon, licensed to practice in the state of Nevada. Stats. 1920-21, p. 66. From the judgment of conviction and order denying his motion for a new trial, this appeal is taken.

It appears from the record that a search warrant commanding any peace officer of Elko county to make search of premises used and occupied by appellant was issued by a justice of the peace of that county, upon an affidavit made upon the information and belief of one J. A. McFarlane. Armed with this search warrant, officers went to a yard used by appellant as a chicken yard, located a short distance from a room in which he was living, and digging in the yard found a can containing a number of bindles of cocaine, and another can containing a small amount of opium, and several opium lamps and lamp chimneys. After the search warrant had been served on appellant, he was taken to the yard in question, and a further search revealed some opium buried in another part of the yard.

There is a conflict in the testimony as to what was said by the appellant concerning his ownership of the premises on which the opium and cocaine were found; the officers testifying in substance that he stated that he owned the yard and the chickens, and the appellant testifying that he owned the chickens but not the yard. Prior to the trial appellant, by his counsel, made a written demand of the court that it order the cocaine and opium seized by the officers under and by virtue of the search warrant, restored to the premises from which the same was taken, or that it be disposed of as provided by law; and moved the court to suppress the same as evidence. The basis of the demand was that the search warrant was illegal, for the reason, among others assigned, that the affidavit upon which it was issued was made upon information and belief, and was not therefore sufficient to establish probable cause for the issuance of said warrant. The motion was denied by the court.

On the trial of the case the cocaine and opium seized by the officers was introduced in evidence over the objection of the appellant. It is insisted that this evidence is illegal and should have been suppressed on appellant's demand and motion; that its admission in evidence is in violation of appellant's right as guaranteed by the Fourth and Fifth Amendments to the Constitution of the United States, and by sections 8 and 18 of article 1 of the state Constitution, and as there was no other evidence before the jury upon which it could legally find the appellant guilty of the offense charged, the judgment should be reversed.

The contention here is, as was urged in the lower court, that the affidavit upon which the search warrant was issued is insufficient because made upon information and belief.

By reason of the conclusion we reach we deem it unnecessary to determine whether the search warrant was illegal on this account, or pass upon several points made by respondent against appellant's contention, among which is the point that the chicken house involved is not within the scope of the constitutional provisions securing people in their persons and houses against unreasonable searches and seizures. The exact inquiry to which we address ourselves is: Was the evidence complained of admissible as tending to prove appellant's guilt of the offense charged, despite the constitutional objections urged? It is a doctrine accepted by many state courts that illegality in the mode of obtaining evidence does not affect its admissibility if it tends to prove the issue. The rule is thus stated by an eminent authority on the law of evidence:

"Though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility if they are pertinent to the issue. The court will not take notice how they are obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question." 1 Greenleaf on Evidence (16th Ed.) § 254a.

As pointed out by the editor of the edition, the principle stated in the foregoing section has been regularly applied to incriminating materials, tools, liquor, documents, etc., obtained by the unlawful search of premises, or by unlawful search of the person, or by other unauthorized means. Shields v. State, 104 Ala. 35, 16 So. 85, 53 Am. St. Rep. 17; People v. Le Doux, 155 Cal. 535, 102 P. 517; Gindrat v. People, 138 Ill. 103, 27 N.E. 1085; State v. Miller, 63 Kan. 62, 64 P. 1033; State v. Burroughs, 72 Me. 479; Commonwealth v. Dana, 2 Metc. (Mass.) 329; Commonwealth v. Wilkins, 243 Mass. 356, 138 N.E. 11; State v. Pomeroy, 130 Mo. 489, 32 S.W. 1002; State v. Flynn, 36 N.H. 64; People v. Adams, 176 N.Y. 351, 68 N.E. 636, 63 L. R. A. 406, 98 Am. St. Rep. 675, affirmed Adams v. New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575; State v. Barr, 78 Vt. 97, 62 A. 43; State v. Griswold, 67 Conn. 290, 34 A. 1046 33 L. R. A. 227; Benson v. State, 149 Ark. 633, 233 S.W. 758; Williams v. State, 100 Ga. 511, 28 S.E. 624, 39 L. R. A. 269; Welchek v. State, 93 Tex. Cr. R. 271, 247 S.W. 524; City of Sioux Falls v. Walser, 45 S.D. 417, 187 N.W. 821; Commonwealth v. Courtney, 243 Mass. 363, 138 N.E. 16; State v. Myers, 36 Idaho, 396, 211 P. 440; State v. Hesse, 154 Minn. 89, 191 N.W. 267; People v. Mayen, 188 Cal. 237, 205 P. 435, 24 A. L. R. 1383; State v. Chuchola (Del. Gen. Sess.) 120 A. 212; State v. Tonn, 195 Iowa, 94, 191 N.W. 530; State v. Aime (Utah) 220 P. 704; Lucchesi v. Commonwealth, 122 Va. 872, 94 S.E. 925; Billings v. State, (Neb.) 191 N.W. 721; Calhoun v. State, 144 Ga. 679, 87 S.E. 893; Ex parte Rankin, 45 Nev. 173, 199 P. 474.

This principle was applied by this court in Ex parte Rankin, supra, recently decided. In that case the petitioner had been informed against in the district court for a violation of the Initiative Prohibition Act (St. 1919, c. 1), and sought his discharge from imprisonment by habeas corpus. The point was made that the evidence on which he was held to answer was obtained by and through an illegal search warrant. On this phase of the case we held that, conceding the information to have been grounded on evidence illegally obtained, the fact was not sufficient to warrant petitioner's discharge on habeas corpus.

In most of the cases cited supra, the evidence complained of was obtained by an unlawful search and seizure, and was held over constitutional objections to be admissible. The reasons why such evidence is admissible are well stated in State v. Flynn, cited supra:

"Its ground [of the objection] is, rather, that information obtained by means of a search warrant, in a case not authorized by the Constitution, is not competent to be given in evidence, because it has been obtained by compulsion from the defendant himself, in violation of that clause of the Constitution which provides that no person shall be compelled to furnish evidence against himself. * * * It seems to us an unfounded idea that the discoveries made by the officers and their assistants, in the execution of process, whether legal or illegal, or where they intrude upon a man's privacy without any legal warrant, are of the nature of admissions made under duress, or that it is evidence furnished by the party himself upon compulsion. The information thus acquired is not the admission of the party, nor evidence given by him, in any sense. The party has in his power certain mute witnesses, as they may be called, which he endeavors to keep out of sight, so that they may not disclose the facts which he is desirous to conceal. By force or fraud access is gained to them, and they are examined, to see what evidence they bear. That evidence is theirs, not their owners'. If a party should have the power to keep out of sight, or out of reach, persons who can give evidence of facts he desires to suppress, and he attempts to do that, but is defeated by force or cunning, the testimony given by such witnesses is not his testimony, nor evidence which he has been compelled to furnish against himself. It is their own. It does not seem to us possible to establish a sound distinction between that case, and the case of counterfeit bills, the forger's implements, the false keys, or the like, which have been obtained by similar means. The evidence is in no sense his."
"This distinction," says Mr. Wigmore in his treatise on Evidence, "has received repeated illustrations and almost universal acceptance, in a variety of applications to documents and chattels obtained by search or seizure independent of testimonial process." 3 Wigmore on Evidence, § 2264, and cases cited in note 2.

The mute witnesses in this case were the contraband cocaine and opium which the appellant was endeavoring to keep out of sight. It established, or at least tended to establish, his possession of the interdicted drugs, which constituted the crime charged, unless he had a written order or prescription as provided by the statute. How could the possession of the drugs in any sense compel ...

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