State v. Ditmar

• Decision Date: 15 January 1925
• Docket Number: 18862.
• Citation: 232 P. 321,132 Wash. 501
• Court: Washington Supreme Court
• Parties: STATE v. DITMAR et al.

232 P. 321

132 Wash. 501

STATE v. DITMAR et al.

No. 18862.

Supreme Court of Washington

January 15, 1925

Department 2.

Appeal from Superior Court, Lincoln County; Truax, Judge.

Josephine Ditmar and another were convicted of manufacturing intoxicating liquor for purpose of sale, and they appeal. Affirmed.

Patrick C. Shine, of Spokane, for appellants.

Roy C Fox, of Davenport, for the State.

FULLERTON J.

Josephine Ditmar and Frank Ditmar were found guilty by the verdict of a jury of the offense of manufacturing intoxicating liquor for the purpose of sale, barter, and exchange, and appeal from the judgment pronounced upon the verdict.

To an understanding of the errors assigned for a reversal of the judgment, an outline of the salient facts is necessary. On the evening of September 13, 1923, two young men stopped at the garage of one William Colville, at Reardan, Lincoln county, Wash., and inquired of Colville as to the location of a certain farm in that vicinity. The young men either did not know or had forgotten the names of the occupants of the farm but from their description of them, Colville concluded that they were seeking the farm occupied by the appellants, and directed them to it. Colville was a deputy sheriff of the county, and, suspecting that they were going to the farm for the purpose of purchasing intoxicating liquor, called up the office of the sheriff of the county, and made known to the person in charge his suspicions. Two other deputy sheriffs joined Colville, and the three went to the place where the road leading from the farm mentioned entered the main highway, and waited the return of the young men. The young men soon thereafter appeared, and were stopped by the deputies. The car in which the young men were riding was searched, and in it was found a gallon jug full of intoxicating liquor, commonly known as moonshine whisky. The young men informed the officers that they had purchased the liquor from the appellant Frank Ditmar. The liquor was taken into custody, and the officers returned to Reardan, where one of them procured a search warrant authorizing a search of that part of the farm on which were located the dwelling house, barn, and outbuildings. The officers, armed with the search warrant, went to the farm and made a search of the premises. In the dwelling house they found a five-gallon jug of moonshine whisky, and in the loft of an outbuilding, some 200 feet distant from the dwelling house, they found five barrels of mash in the process of fermentation, and all of the parts of a large still with the exception of the coil. After the officers found the jug in the dwelling house, and while they were continuing the search of the house, the appellant Josephine Ditmar succeeded in breaking the jug, spilling its contents, no part of which was saved. The officers seized the parts of the still found in the outhouse, arrested the appellant Frank Ditmar, and returned to Davenport, the county seat of the county. Josephine Ditmar followed the parties to the county seat, and was arrested at that place on the direction of the prosecuting attorney. On the next morning, one of the officers went back to the farm and took into his possession a part of the mash. The officer made return of the search warrant to the justice of the peace issuing it, and no further proceedings were had in that court.

On the day following the arrest of the appellants, a complaint was filed in a justice's court at Davenport, charging them with the offense of manufacturing intoxicating liquor for the purposes of sale, barter, and exchange. Prior to entering upon the trial the defendants moved to quash the proceedings, demanded a return of the property seized by the officers, and demanded separate trials. These motions the justice overruled, and a trial was entered upon, which resulted in a conviction of the defendants. From the judgment of conviction the defendants appealed to the superior court of Lincoln county, where the motions were renewed. The motions were denied, and the defendants were again put on trial for the offense stated. On the trial they objected to the introduction in evidence of the articles seized by the officers, which objection the trial court overruled. The trial was then continued, and resulted in the judgment of conviction, from which the appeal before us is prosecuted.

Noticing the assignments of error in a somewhat different order than the appellants present them, the first is that the court erred in refusing to quash the proceedings. This assignment has its basis in the fact that the defendants were arrested by the sheriff's officers without a warrant. But aside from the fact that officers of the law may under certain circumstances arrest for a misdemeanor without a warrant ( State v. Llewellyn, 119 Wash. 306, 205 P. 394; State v. Hughlett, 124 Wash. 366, 214 P. 841), circumstances which we think the record shows were present here, it is not a ground for quashing a criminal prosecution that the defendants are arrested without a lawful warrant therefor. This we held in the case of State v. Melvern, 32 Wash. 7, 72 P. 489, wherein we used the following language:

'It is shown by the above-mentioned affidavit that no warrant was ever issued for the arrest of the appellant, and it is therefore strenuously insisted that the court never acquired jurisdiction of the person of appellant, and consequently had no right to compel him to go to trial. But it appears that appellant was in fact in the custody of an officer, that he was present in court on the day of his arraignment, that he entered a plea of not guilty to the information, and that he was in court throughout the trial. Under these circumstances we have no doubt that the court had jurisdiction of the defendant. See 1 Bishop, New Criminal Procedure, § 179; Kerr v. Illinois, 119 U.S. 436 (7 S.Ct. 225); State v. Ray, 50 Iowa, 520. We are unable to perceive why the alleged irregularity in the manner of bringing the appellant before the court entitled him to immunity from trial for the offense with which he was charged in the information. The court might have caused a warrant to be issued for the arrest of appellant at the time of the trial, but that was unnecessary, because he was already in court in charge of the sheriff. There is nothing in the record indicating that he objected to the manner of his arrest or detention, at any time prior to the day of trial. If he was illegally restrained of his liberity while in the county jail, he might have obtained redress by an appropriate proceeding in court; but the mere fact that he was arrested, in the first instance, by a person not having a lawful warrant therefor, and detained by him, constitutes no ground for the reversal of the judgment.'

It is next insisted that the court erred in refusing to grant the demand of the appellants for a return of the property seized under the search warrant, and erred in permitting the articles seized, as well as the whisky taken from the young men mentioned, to be introduced in evidence. Concerning these contentions, the appellants make the argument that it appeared from the complaint and transcript certified by the justice of the peace to the superior court, 'that neither warrant of arrest, search warrant, nor return pursuant to that complaint existed; that the evidence obtained from Herring and Jenkins [the young men mentioned] was illegally obtained and used against these defendants,' and that for these reasons the demand for the return of the property should have been granted. A literal compliance with the demand, in so far as it related to the intoxicating liquor at least, could not, of course, have been granted.

Courts will not direct the return to an individual of any form of property which is contraband in law, and which makes him a criminal the moment he takes it into possession. This is the effect of our holding in State ex rel. Yakima v. Superior Court, 120 Wash. 280, 206 P. 925. But, treating the demand as a motion to suppress evidence, it is equally without foundation. While this court has held that intoxicating liquor unlawfully taken from the possession of a person cannot be used as evidence against him on a trial of a criminal charge for an offense relating to its possession, it has also pointed out the manner in which, and the circumstances under which, the objection can be made. State v. Dersiy, 121 Wash. 455, 209 P. 837, 215 P. 34. It is not the rule that the state must show as a condition precedent to the introduction in evidence of intoxicating liquor that it came into the possession of the liquor lawfully. This is an objection which the defendant must make, and when he makes it he must himself show that its possession was obtained by the state unlawfully. The fact, therefore, that the search warrant under which the intoxicating liquor was seized in this instance did not appear in the record sent to the superior court was not a ground for suppressing the liquor as evidence, nor a ground for denying its introduction as such at the trial.

The jug of liquor taken from the young men may have been as against them wrongfully taken, and, had they been put upon trial for unlawful possession of the liquor, it is possible that it should have been excluded as evidence against them. But this is not a ground for excluding it on the trial of the appellants. The reason for suppressing evidence obtained by wrongful search and seizure is because of the invasion of the constitutional rights of the defendant; it is, in the opinion of the authoritative court, to compel a defendant to become a witness against...