State v. Dersiy

• Citation: 121 Wash. 455,215 P. 34
• Decision Date: 10 May 1923
• Docket Number: 17101.
• Court: United States State Supreme Court of Washington
• Parties: STATE v. DERSIY.

215 P. 34

121 Wash. 455

STATE v. DERSIY.

No. 17101.

Supreme Court of Washington, En Banc.

May 10, 1923

Appeal from Superior Court, Pacific County; H. W. B. Herren, Judge.

On rehearing. Former opinion (209 P. 837) affirmed.

E. S. Snelling, of South Bend, John I O'Phelan, of Raymond, and Alfred J. Schweppe, of Seattle for appellant.

Herman Murray, of South Bend, and Edward M. Connelly, of Spokane for the State.

BRIDGES, J.

We adhere to the views expressed by us in the department decision, and approve of the disposition there made of this case. State v. Dersiy (Wash.) 209 P. 837.

Inasmuch however, as the case has been presented to the whole court we deem it advisible to elaborate somewhat on the question of the admission in evidence of articles seized by the police officers. In this case the facts were that the intoxicating liquor, which was offered in evidence by the state, had, with the knowledge of the defendant, been taken by the police officers some months before the trial. When the case was called for trial, and immediately before the jury was made up, the appellant moved the court to refuse to receive the liquor in evidence for the reason that it had been unlawfully seized by the police officers, without any search warrant. This motion was supported by appellant's affidavit, and at the same time he offered to prove the unlawful seizure. The court refused to hear this motion, because it had not been seasonably and timely made. At the trial, the liquor was offered in evidence by the state and received over the objection of appellant. There was nothing in the state's evidence to indicate that the liquor had been unlawfully seized.

In discussing this question, the department decision says:

'When a case of this character is called for trial, the court is not required, at that time, to try out and investigate the circumstances under which the liquor was taken, to determine whether it was admissible in evidence.'

Questions of this character generally arise under one of the three following circumstances:

(1) Where, by the direct or proper cross-examination of the state's witnesses, it is made to appear, or it is otherwise admitted, that the articles which are offered in evidence were unlawfully seized. Under those circumstances, it is the duty of the trial court, upon objection, to refuse to receive them in evidence. No question of fact exists under these circumstances. The court is only called upon to rule on the admissibility of evidence upon admitted or conceded facts. It is not required to stop in the midst of the trial and try a collateral fact.

(2) Where, during the trial, the seized articles are offered in evidence, and it does not appear from the state's testimony, or otherwise, that such articles were unlawfully seized, and objection is made to the introduction of such evidence, on the ground that it was unlawfully seized, and the defendant offers by affidavit, or otherwise, to prove such unlawful seizure, the court should receive the articles in evidence, because it will not, at that stage of the proceedings, stop to investigate the disputed circumstances under which the articles were seized. If, under these circumstances, the defendant desires to suppress, as evidence, the articles taken, he must, within a reasonable time before the case is called for trial, move for such suppression, and thus give the court an opportunity to separately try out this disputed question of fact. One exception to this rule would be:

(3) Where, during the trial of the case, the defendant objects to the receiving of the articles in evidence, on the ground that they had been unlawfully seized, and offers to prove such unlawful seizure, and to further prove that, by the exercise of reasonable diligence, he could not before have learned that the articles had been unlawfully seized, the court should stop in the trial of the case and determine the collateral issue concerning the legality of the seizure. This for the reason that the defendant has not previously had an opportunity to raise the question. Where the defendant has had previous knowledge that the articles were taken, it is not unfair to him that he should be required to move, prior to the time of the trial, to suppress the articles as evidence. But where he has not had the opportunity of obtaining the knowledge of the taking until the articles are offered in evidence, it would be a harsh and unfair rule to deprive him of the right, during the trial, to object to the introduction of the articles in evidence and to prove, if he can, the ground of his objection. Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647.

The appellant's attorneys, in their petition for rehearing and their argument, assert that the opinion of the department, while in accord with the older doctrine, is directly against the more recent authorities, particularly cases of such recent decision as not to have been cited in the original briefs. We have very carefully read all the cases cited, and we believe that there is not one which takes a more advanced position...