State v. Dersiy

• Decision Date: 07 October 1922
• Docket Number: 17101.
• Parties: STATE v. DERSIY.
• Court: Washington Supreme Court

209 P. 837

121 Wash. 455

STATE v. DERSIY.

No. 17101.

Supreme Court of Washington

October 7, 1922

Department 1.

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

Joe Dersiy was convicted of possessing intoxicating liquors, and he appeals. Affirmed.

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

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

BRIDGES J.

The appellant was charged with and convicted of having the unlawful possession of intoxicating liquors.

He was operating a so-called soft drink place in the city of Raymond, Wash. On January 1, 1921, the officers of the law visited his place and found and took away with them some intoxicating liquor, which was subsequently admitted in evidence on behalf of the state. Immediately following the calling of the case for trial, and when the court was ready to make up a jury, but before any prospective jurors had been called, the appellant moved the court to require the return of the liquor to him, or to suppress it as evidence in the case, on the ground that it had been seized without a search warrant. This motion was supported by appellant's affidavit, tending to show that the officers visited his place of business at about 8 o'clock in the evening, and, without displaying or having any search warrant, searched his premises and obtained the liquor mentioned. The affidavit further showed that the appellant 'did not ascertain for a certainty until May 3, 1921, at the hour of about 11 o'clock a. m.,' that the officers making the search did not have a search warrant. The trial court declined to hear this motion for the reason it was not timely made. Of this ruling the appellant complains here. The facts are that the liquor was obtained on the evening of January 1, 1921, and the information against appellant was filed on January 15 of the same year, and that appellant was arrested and arraigned on January 16, and that the case came on for trial on May 4. Under these circumstances, we think the court's ruling was right. 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. While this particular question has been presented to this court two or three times we have not been required to pass on it. The question is elaborately and learnedly discussed in the case of People v. Marxhausen, 204 Mich. 559, 171 N.W. 557, 3 A. L. R. 1505. The court there said:

'It must be patent that upon the trial of a criminal case the court cannot pause in the trial when a bit of evidence, admissible undergeneral rules, is offered, to engage in a collateral inquiry as to how the prosecution became possessed of such evidence. That would be the trial of a collateral matter, and as a general proposition the courts have so held, and where the evidence offered was competent, have not paused in the trial to determine the collateral issue of whether the evidence was legally secured or not.'

In 10 R. C. L. p. 933, the rule is stated as follows:

'The principle underlying the decisions admitting the evidence is that an objection to an offer of proof made on the trial of a cause raises no other question than that of the competency, relevancy, and materiality of the evidence offered, and that consequently the court, on such an objection, cannot enter on the trial of collateral issues as to the source from which the evidence was obtained; but, since there is a right, there must be a remedy, and the remedy is found in the making of a timely application to the court for an order directing the return to the applicant of the papers unlawfully seized, and on such an application the question of the illegality of the seizure may be fully heard, and if the court erroneously refuses to order a return of the papers, and thereafter receives them in evidence against the applicant, over his objection, it is error for which a judgment of conviction must be reversed.'

The Supreme Court of the United States has adopted the same rule. See Taylor v. Benham, 5 How. 233, 12 L.Ed. 130.

We are of the opinion that a rule of this character not only works no injustice on the person charged with the crime, but greatly facilitates the trial of cases.

But appellant contends that his application showed that he did not learn that the liquor was seized without a search warrant until the day before the case was called for trial. Appellant's affidavit hardly justifies this statement because it shows that he did not 'learn for a certainty' that such was the case until about 11 o'clock of the day before the case was called for trial. It was the duty of the appellant to make an investigation to determine whether the liquor was seized with or without a warrant, if he wanted to raise that question at the trial. He would not be permitted to sleep on his rights and then raise the question at a time when the determination of it would greatly delay the...