State v. George

• Decision Date: 23 December 1924
• Docket Number: 1180
• Parties: STATE v. GEORGE [*]
• Court: Wyoming Supreme Court

231 P. 683

32 Wyo. 223

STATE v. GEORGE ^[*]

No. 1180

Supreme Court of Wyoming

December 23, 1924

APPEAL from District Court, Albany County; VOLNEY J. TIDBALL, Judge.

Herman George was convicted of larceny, and he appeals.

Affirmed.

Kinkead Ellery and Henderson, for appellant.

The search warrant was a nullity, the affidavit being made upon belief, Const. Art. I, Sec. 4; State v. Peterson, 27 Wyo. 185; Wiggin v. State, (Wyo.) 206 P. 573; it did not show probable cause; In Re; Tri State Co., 253 F. 605; it did not describe the place; Johnson v. Comstock, 14 Hun. 238; Byrnside v. Burdett, 15 W.Va. 702; Com. v. Intoxicating Liquors, 97 Mass. 334; it did not describe the sheep, 24 R. C. L. 714; the search was a violation of constitutional rights; Boyd v. U.S. 29 L.Ed. 746; State v. Bugg, (Kans.) 72 P. 236; Bond v. People, 8 Mich. 150; Ivey v. State, 61 Ala. 58; Youman v. Com., (Ky.) 224 S.W. 860; U. S. v. Kraus, 270 F. 578; State v. Court (Mont.) 198 P. 362; People v. Marxhausen, 39 A R. L. 1505; no person shall be compelled to testify against himself; Const. Art. I, Sections 4 and 11; the rule applies to property evidence; Boyd v. U. S. supra; Gouled v. U.S. 65 L.Ed. 647; the admission of evidence procured through unlawful search and seizure was error and it should have been returned; State v. Peterson, supra; Silverthorne Co. v. U.S. 64 L.Ed. 319; U. S. v. Lydecker, 275 F. 976; the erroneous admission of evidence is reversible error, 17 C. J. 319, and cases cited. The Court erred in giving instructions numbered 7; Robinson v. State, 18 Wyo. 216; instruction assumed that there was evidence tending to show guilt of defendant; Luyon v. State, (Ariz.) 141 P. 706; Merino v. State, 141 P. 710; People v. Roberts, 55 P. 137; Thomas v. State, 33 So. 250, 25 Cyc. 152; instructions failed to advise the jury that to justify guilt from recent possession of stolen property it must appear that the possession is personal; McNeally v. State, 5 Wyo. 59, 17 R. C. L. 73; the jury was not instructed on the essential law of the case; Gardner v. State, (Wyo.) 196 P. 750; the verdict was contrary to the evidence. There was no evidence to support the finding of intent required in instruction numbered 6; Hammond v. Thompson, (Mont.) 173 P. 229; McManus v. Co., (Minn.) 123 N.W. 1080; Standard Oil Co. v. Humphries, 88 So. 855; that instruction was the law of the case and binding upon the jury. The reading of the search warrant before seizing the sheep was, at least, an implied coercion; Wiggin v. State, supra; U. S. v. Slusser, 270 F. 818.

David J. Howell, Attorney General, John C. Pickett, Asst. Attorney General, and Geo. W. Patterson, Prosecuting Attorney for Respondent.

The seizure of articles in view of the officer at the place of the crime and at the time of arrest was lawful; Wiggin v. State, (Wyo.) 206 P. 373; State v. Quinn, 3 A. L. R. 1500; L. R. A. 1916 C. 1017; State v. Barella, (N. Mex.) 168 P. 545; instruction number 7 correctly stated the law governing the possession of recently stolen property and instruction number 6 strongly favored defendant, but no exceptions were taken to the giving of either instruction; Smith Drug Co. v. Casper Drug Co., 5 Wyo. 510, 2 R. C. L. 96; no exceptions will be regarded unless prejudicial Sec. 4599; C. S. Kahn v. Ins. Co., 4 Wyo. 419; Pardee v. Kuster, 15 Wyo. 368; Eads v. State, 17 Wyo. 490; Yount v. Strickland, 17 Wyo. 526; every reasonable presumption will obtain in support of the judgment. Nott v. Johnson, 70 So. 270; Robbins v. Barton, 50 Kans. 120; Omaha Bank v. Kiper, 16 Neb. 22; the arresting officer will take into his possession the instruments of the crime, and such property or evidence which he believes is connected with the offense; State v. Mausert, 95 A. 991; State v. Brown, 145 P. 69; People v. Cona, 147 N.W. 525; Yeoman v. Com., 224 S.W. 860; the arrest could have been made without a warrant, 5 C. J. 399; Smotherson v. State, 37 So. 376; the cause was properly submitted and the evidence was sufficient to sustain the judgment.

Kinkead, Ellery and Henderson in reply.

The briefs filed by the Attorney General and County Prosecutor are in some respects conflicting, it is probable that the brief of the County Attorney was filed without authority, 1554 C. S. 1920. The contention that a search and seizure made incidental to the arrest was valid is not supported by the Wiggins case, nor the cases cited in that opinion; Smith v. Jerome, 93 N.Y.S. 202; State v. Brown, (Wash.) 145 P. 69; Weeks v. U.S. 58 L.Ed. 652; the affidavit made on belief, did not meet the requirements of Art. I, Sec. 4 of the Const. State v. Gleason, 4 P. 363; an information made on belief is insufficient; State v. Boulter, 5 Wyo. 236; State v. Peterson, 27 Wyo. 185; Johnson v. U.S. 87 F. 187; State v. McLain, (N. D.) 102 N.W. 407; the search and seizure was more than incidental, it was unauthorized; Goule v. U.S. 65 L.Ed. 647; the point was discussed in the Wiggin case; People v. Brocamp, (Ill.) 138 N.E. 728; State v. Miller, (Wash.) 209 P. 9; Colyer v. Skeffington, 265 F. 17; Flagg v. U.S. 233 F. 481; U. S. v. Mounday, 208 F. 186; we doubt whether arrest without warrant is permissible in this State, unless the person arrested is found in the actual violation of law; 7349 and 7350, C. S. 1920, 5 C. J. 395; there was no evidence of intent to steal the property and instruction number 6 was apparently disregarded hence the evidence is insufficient to support the verdict.

BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

The defendant was convicted of stealing 33 head of sheep in Albany County, the property of one W. S. Pickens, and he appeals.

The defendant owned and occupied a farm in said county, about five miles north and west of the range of the complaining witness where the sheep in question, together with others to the number of about 4000, were grazing. A storm from the southwest struck this range about November 18, 1921, and about 2000 of the sheep drifted away from the herd in a northerly direction. Either during the storm or immediately thereafter a number of the sheep drifted upon the range of the defendant, and were found there about November 20, 1921. Within a few days after the storm most of the sheep that were lost were found and recovered, but 200 of them were still missing. About November 28, 1921, Pickens, as he testified, saw one of his sheep among the band of sheep owned by defendant. These sheep of defendant were grazing on the open range, quite a distance away from the home of defendant, on land, so it would seem, owned by the government of the United States, but occupied as it was by defendant's sheep, no one else used this range. Defendant, it seems, had constructed a corral on this land, into which his sheep were driven for the nights. On the evening of December 4th, 1921, Pickens visited the defendant's sheep just as they were being driven into the corral, at which time, as he claims, he saw a number of his sheep in defendant's band. He thereupon, on the same day, filed an information with a justice of the peace, and a warrant was issued substantially in the form as the warrant considered by us in the case of Wiggin v. State, 28 Wyo. 480, 206 P. 373, and it is conceded that this warrant was invalid as a warrant of search and seizure. Thereafter, on the same evening of December 4th, 1921, Pickens and the deputy sheriff Steadman visited the defendant's sheep, which had then been driven into the corral, and he and the deputy sheriff examined one of them, by flashlight, and the latter "satisfied" himself that the sheep examined belonged to Pickens. On the morning of December 5, 1921, said Pickens and said deputy sheriff, accompanied by other men, drove to defendant's home. The latter came out of his home, was arrested by the deputy sheriff and informed of the intention to search for stolen sheep. One sheep, which was among a few other sheep near the barn or shed of defendant, was examined and seized. The searching party, accompanied by defendant, then proceeded to defendant's band of sheep on the open range, and examined and seized 32 more sheep which Pickens claimed as his own. Before the trial of the case the defendant made a motion for the return of said sheep and for the suppression of the evidence obtained through the search and seizure aforesaid. The court overruled the motion. Later, immediately before the commencement of the trial of the main case, testimony was taken in connection with the foregoing motion, evidently for the purpose of reinvestigating the subject. At the close of the taking of such testimony the defendant objected to the reception of any evidence obtained through the search and seizure aforesaid. This objection was overruled. The main question in the case is the correctness or incorrectness of these rulings of the trial court, the defendant claiming the protection of our constitutional provisions relating to search and seizure and providing that no person shall be compelled to testify against himself in a criminal case.

1. Section 4 of Art. I of the Constitution of this state provides:

"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 no warrant shall issue but upon probable cause, supported by affidavit, particularly describing the place to be searched and the person or thing to be seized."

And Sec. 11 of the same article provides:

"No person shall be compelled to testify against himself in a criminal case."

These provisions were considered by this court in State v Peterson, 27 Wyo. 185, 194 P. 342, 13 A. L. R. 1284, and Wiggin v. State, 28 Wyo. 480, 206 P. 373. In the former of the two cases we held that property seized under a void...