State v. Fahn
| Decision Date | 04 August 1925 |
| Docket Number | 4926 |
| Citation | 205 N.W. 67,53 N.D. 203 |
| Court | North Dakota Supreme Court |
Rehearing denied September 14, 1925.
Appeal from the District Court of Ramsey County, Cooley, J.
Affirmed.
Cuthbert & Adamson, for appellant.
The constitutional provisions are paramount. State v. Jokosh (Wis.) 193 N.W. 976.
An unreasonable search is an examination or inspection without authority of law of one's premises or person with a view to the discovery of stolen, contraband, or illicit property or for some evidence of guilt to be used in the prosecution of a criminal action. 24 R. C. L. 717.
A search must be lawful in its entirety. It is not made lawful by what is ascertained after it is made. United States v Slusser, 270 F. 818.
The state having through its executive officers produced the evidence of a violation of the law by one of its citizens by means prohibited by the Constitution cannot be permitted through its judicial tribunal to utilize the wrong thus committed against the citizen to punish the citizen for his wrong. Hughes v. State, 145 Tenn. 544, 20 A.L.R 639, 238 S.W. 588.
Where defendant is charged with unlawfully having moonshine liquor in his possession, if the liquor or evidence of defendant's possession thereof has been secured through an unlawful search of his person without a warrant for his arrest, neither the liquor so seized nor the evidence of the possession thereof, so acquired, is admissible against him in a prosecution for the alleged offense. State v. Wills, W.Va. , 24 A.L.R. 1417; State v. Davis, Mo. , 32 Am. St. Rep. 643; Boyd v. United States, 116 U.S. 616; 2 Story, Const. § 1901; Cooley, Const. Lim. 299; Cooley, Const. Law, 220; 2 Hare, Am. Const. Law, 830.
H. W. Swenson and S.W. Thompson, for respondent.
Even though it should be conceded that the seizure of these instrumentalities by the officers was unreasonable and violatory of defendant's constitutional rights against unlawful search and seizure, it does not follow that the testimony of the officers or introduction as evidence of such instrumentalities compels the defendant in a criminal case to be a witness against himself. State v. Pauley, 192 N.W. 91.
It has long been established that the admissibility of evidence is not affected by the illegality of the means through which the party has been enabled to obtain the evidence, the illegality is by no means condoned, it is merely ignored. Wigmore on Evidence.
While it is true that the search of a defendant without legal justification is a trespass, and an indictable misdemeanor, there is no principle or theory upon which the state may be deprived of the right to employ the evidence of a criminal offense thus obtained. The law appoints the remedy for the redress of the wrong, but the exclusion of the evidence criminating the defendant is not within the scope of the remedy, or the measure of redress. 8 R. C. L. 196, § 193.
Evidence which is pertinent to the issue is admissible although it may have been procured in an irregular or even an illegal manner. Com. v. Tibbetts, 157 Mass. 519.
The use as evidence of incriminating articles unlawfully taken from the possession of the accused, does not compel him to be a witness against himself within the inhibition of the state Constitution. State v. Pluth, 195 N.W. 789.
Mike Fahn was convicted on a charge of unlawfully having possession of intoxicating liquor. From the judgment of conviction he perfected the present appeal.
The record discloses the following facts: On August 11th, 1924, an affidavit was made before a justice of the peace of Ramsey county, for a search warrant to be issued under the provisions of chapter 97, Sess. Laws, 1921. A purported search warrant was issued by the justice directing the search of certain premises owned and in the possession of Mike Fahn, the defendant. On this appeal, the state concedes that this warrant was not in proper form and was void. No search was made until September 4th, 1924. On that day, the sheriff and his deputies went to the dwelling house of the defendant. The sheriff had no warrant for the arrest of the defendant. The defendant was not at home. His wife, however, was there. She came to the door of the house and the sheriff informed her that he wished to search the premises. He did not produce the search warrant or serve it upon her, nor exhibit it to her. She offered no objection and he entered the house. He went down cellar and there discovered a still in operation and also found several vessels containing moonshine alcohol. This still and the liquor were seized and taken into possession by the sheriff. He made a return on the purported search warrant showing the property found and seized. Thereafter the defendant was arrested, informed against for unlawfully having possession of intoxicating liquor, tried, and convicted. On September 20th, 1924, the defendant made a motion in the district court of Ramsey county for an order in advance of the trial, barring the state from offering in evidence on the trial of the defendant any of the articles enumerated in the sheriff's return. In support of this motion, the defendant contended that the search warrant was illegal, and that the sheriff had obtained possession of the liquor and apparatus while unlawfully upon the premises, in violation of the constitutional rights of the defendant as against unreasonable searches and seizures as guaranteed by both the 4th Amendment to the Constitution of the United States and § 18 of the Constitution of the state of North Dakota. This motion was denied. Subsequently, on the trial of the cause, the liquor found and seized by the sheriff was offered in evidence over objection on the part of the defendant. No evidence was offered on behalf of the defendant. No motion was made at the close of the case challenging the sufficiency of the evidence to sustain a verdict of guilty, and no motion for a new trial as made.
On this appeal, the defendant assigns four grounds for reversal. (1) Error of the court in denying the defendant's motion to suppress the evidence. (2) Error in not setting aside the verdict and in entering judgment thereon. (3) Error in overruling his objections to the introduction in evidence of the exhibits. (4) The insufficiency of the evidence to sustain the verdict.
It is to be noted that the sufficiency of the evidence to sustain the verdict was not challenged either by motion for a directed verdict or after verdict by motion for a new trial. It is therefore plain that the question of the sufficiency of the evidence cannot be considered on this appeal. See State v. Glass, 29 N.D. 620, 151 N.W. 229, and authorities cited. See also 17 C. J. p. 59.
The defendant predicates error on account of the admission in evidence of the liquor seized over his objection that no foundation had been laid therefor in that the testimony as to its character was purely a conclusion of the witness. He insists that it does not appear from the record, except inferentially, that the liquor was alcoholic and intoxicating and that it was fit for beverage purposes. It appears, however, that the stats witness, Rutten, testified that he had drunk intoxicating liquor, and knew its effects; that he was acquainted with the smell of intoxicating liquor; that he had tasted the liquor offered in evidence and that it was an alcoholic mixture fit for beverage purposes and was intoxicating. We think that with this foundation the evidence was admissible. The testimony of Rutten was not vulnerable to the objection that it was merely a conclusion. In a sense it was a conclusion, just as every statement of facts, knowledge of which is acquired through the senses, is a conclusion. A chemical analysis might have been more satisfactory, but the questions of weight and credibility were for the jury.
The first and second assignments of error remain for consideration. They are aimed at the same proposition, that is, that the search was under a void warrant; that it was illegal and in contravention of both the 4th Amendment to the Constitution of the United States and of § 18 of the Constitution of the state of North Dakota.
Of course, in this case, the prosecution being under a statute of the state of North Dakota, the defendant is not in a position to invoke the provisions of the 4th Amendment to the Constitution of the United States. That applies only to Federal actions and is not concerned with state actions. See Minneapolis & St. L. R. Co. v. Bombolis, 241 U.S. 211, 60 L.Ed. 961, L.R.A. 1917A, 86, 36 S.Ct. 595, Ann. Cas. 1916E, 505, and cases cited; Hoyer v. State, 180 Wis. 407, 27 A.L.R. 673, 193 N.W. 89; State v. Brennan, 2 S.D. 384, 50 N.W. 625.
There remains then the single question as to whether under § 18 of the Constitution of the state of North Dakota the evidence procured by the sheriff on the search and seizure was properly admissible, the search warrant being concededly invalid, and the defendant having made timely application to suppress the evidence.
Section 18 of the Constitution of the state of North Dakota contains the same guaranties and is practically identical in language with the 4th Amendment to the Constitution of the United States. There are many cases in the books touching the question here for consideration, but there is a wide divergence among them. The United States courts following the case of Boyd v. United States, 116 U.S. 616, 29 L.Ed. 746, 6 S.Ct. 524, with variations, hold that evidence seized on an unlawful search where properly objected to is inadmissible. See Adams v. New York, 192 U.S. 585, 48 L.Ed. 575, 24 S.Ct. 372; Holt v....
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