State v. Crump

• Decision Date: 25 May 1926
• Docket Number: 1230
• Citation: 246 P. 241,35 Wyo. 41
• Parties: STATE v. CRUMP [*]
• Court: Wyoming Supreme Court

246 P. 241

35 Wyo. 41

STATE v. CRUMP ^[*]

No. 1230

Supreme Court of Wyoming

May 25, 1926

APPEAL from District Court, Natrona County; ROBERT R. ROSE, Judge.

C. W Crump was convicted on two counts for violation of the prohibition statute, and he appeals.

Affirmed in Part, and Remanded for New Sentence.

E. G Vanatta, for appellant.

No search warrant was issued as provided in Section 33 at Page 158, laws 1921, and all evidence procured by unlawful search should have been excluded; Peterson case, 27 Wyo. 216; evidence that was incompetent and immaterial before the trial, was insufficient at all times during the trial; Gore v. State, 218 P. 545; an objection made during the trial is sufficient; the court erred in receiving the evidence of Mr. Miller with reference to the discovery of liquor and in not overruling the defendant's objection thereto; Amos v. U.S. 225 U.S. 313; officers went to defendant's house to do an illegal thing; the court erred in its instructions with reference to the possession of intoxicating liquor; there was no evidence that defendant kept liquor for the purpose of sale, barter or exchange.

David J. Howell, Attorney General, and John C. Pickett, Assistant Attorney General, for respondent.

There are many cases of search and seizure without a warrant that are not in violation of constitutional rights; Wiggins v State, 28 Wyo. 480; search warrants are not for purposes of discovery, but for obtaining goods or evidence unlawfully possessed, to be used as evidence in a criminal prosecution, and the warrant will not issue except on oath that such goods are actually unlawfully possessed; State v. Peterson, 27 Wyo. 185; as to whether evidence may be introduced over objection before it is received on ground that the evidence was illegally obtained, the courts seem to be in conflict; Gore v. State, (Okla.) 218 P. 545, cited by appellant, holds that the objection should be sustained; the weight of authority seems to be that, if the evidence is otherwise competent, the court will not stop during the trial to determine how it was obtained; Peterson case, 27 Wyo. 217; the cases are collated in 24 A. L. R. 1408; there is nothing in the record to show that the liquor was unlawfully seized; the presumption is that the officers acted within the scope of their authority; Stoker v. Stoker, (Texas) 254 S.W. 398; Gould v. State, 252 S.W. 772; Kitt v. Car, 130 N.E. 1; 22 C. J. 136; in Weinandt v. State, (Nebr.) 13 N.W. 1040, and McKay v. State, (Nebr.) 122 N.W. 893, it was held to be reversible error to receive in evidence a search warrant issued previously in the case; instructions given with respect to possession were in accordance with Chapter 117, laws 1921; defendant admitted that he had unlawfully purchased the liquor and sought to justify his possession by saying that it was for his personal use.

POTTER, Chief Justice. BLUME, J., and TIDBALL, District Judge, concur. KIMBALL, J., did not sit.

OPINION

POTTER, Chief Justice.

The appellant herein was charged in the district court in Natrona County, by information verified and filed by the county and prosecuting attorney, with having, on the 27th day of April, 1923, wilfully and unlawfully possessed whiskey containing one-half of one per cent or more of alcohol and fit for use for beverage purposes, and in a second count, that he did wilfully and unlawfully keep, use and maintain a certain described building, wherein was kept whiskey containing one-half of one per cent or more of alcohol and fit for use for beverage purposes, "to the common nuisance of the people of said county and state." In other words, he was charged with having unlawfully possessed intoxicating liquor, and also with maintaining a common nuisance by the keeping of said liquor in a certain described building. He was found guilty on each count, and has brought the case here by direct appeal.

The evidence upon which conviction was asked under the second count was the same as that introduced to convict upon the first count; and it consisted of proof to show that the defendant had in his possession several bottles of liquor described as "moonshine whiskey," in a place occupied by him as his home, where he lived alone. This will later be shown more specifically by a recital of the testimony. And the fact of such possession, without any proof of sale or attempt to sell, or to use, except for himself and guests in that same place, was all that was shown to convict upon either count.

The proof of said fact of possession was obtained by a search of plaintiff's said place of residence by a deputy sheriff and others assisting him, and the liquor so obtained was introduced in evidence, together with testimony of a chemist showing an analysis of the contents of one of the bottles and that it did contain intoxicating liquor, considerably more than one-half of one per cent of alcohol, but fit for beverage purposes, and was what is known as moonshine whiskey. So far as the evidence shows said search was made without a warrant therefor or even a warrant for appellant's arrest, which was in clear violation of the provisions of Section 4 of Art. I of our state constitution, providing that the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and that no warrant shall issue but upon probable cause supported by affidavit, particularly describing the place to be searched or the person or thing to be seized. And it was also without any authority under our state prohibition law, which is a substantial copy of the national Volstead Act, with such changes only as were necessary to make it applicable within the state. Laws 1921, Ch. 117.

That act provides, as it is provided in the Volstead Act, that it shall not be unlawful to possess liquor in one's private dwelling while the same is occupied and used by him as his dwelling only, provided the same is kept for use only for the personal consumption of the owner and his family residing in such dwelling, and his bona fide guests while entertained therein by him. id., Sec. 31. Said act provides also that no warrant shall be issued to search a private dwelling, occupied as such, unless some part of it is used as a store, storage room, shop, hotel or boarding house, or other purpose than a private residence, or unless such private dwelling is a place of public resort, or where intoxicating liquors are manufactured, sold, kept for sale, or given away in violation of the act. id. Sec. 32.

It was recently said by the Supreme Court of the United States in Agnello v. U.S., 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, that while the right without a search warrant contemporaneously to search persons lawfully arrested while committing crime, and to search the place where the arrest is made in order to find and seize evidence connected with the crime as its fruits, or as the means by which it was committed, is not to be doubted, that right does not extend to other places, and that it has always been assumed by said court, although not directly decided, that one's house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein. And the court, thereupon, said further:

"The search of a private dwelling without a warrant is in itself unreasonable and abhorrent to our laws. Congress has never passed an act purporting to authorize the search of a house without a warrant. On the other hand, special limitations have been set about the obtaining of such search warrants for that purpose. * * * Safeguards similar to the 4th amendment are deemed necessary and have been provided in the Constitution or laws of every State of the Union. We think there is no state statute authorizing the search of a house without a warrant; and, in a number of state laws recently enacted for the enforcement of prohibition, in respect of intoxicating liquors, there are provisions similar to those in § 25 of the National Prohibition Act. Save in certain cases as incident to arrest, there is no sanction in the decision of the courts, federal or state, for the search of a private dwelling house without a warrant. Absence of any judicial approval is persuasive authority that it is unlawful. * * * Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant and such searches are held unlawful notwithstanding facts unquestionably showing probable cause. * * * It is well settled that, when properly invoked, the Fifth Amendment protects every person from incrimination by the use of evidence obtained through search or seizure made in violation of his rights under the Fourth Amendment. Boyd v. United States, supra, 630, et seq; Weeks v. United States, supra, 398; Silverthorne Lumber Co. v. United States, supra, 391, 392; Gouled v. United States, supra, 306; Amos v. United States, 255 U.S. 313, 316, 65 L.Ed. 654, 41 S.Ct. 266. The government contends that, even if the search and seizure were unlawful, the evidence was admissible because no application on behalf of defendant was made to the court for the return of the can of cocaine. The reason for such application, where required, is that the court will not pause in a criminal case to determine collateral issues as to how the evidence was obtained. See Adams v. New York, 192 U.S. 585, 594, 48 L.Ed. 575, 24 S.Ct. 372, affirming 176 N.Y. 351. But in this case, the facts disclosing that the search and seizure violated the Fourth Amendment were not in controversy. They are shown by the examination of the witness called to give the evidence. There was no search warrant; and from the first, the position of the government has been that none was...