State v. Godette

• Decision Date: 29 October 1924
• Docket Number: 148.
• Parties: STATE v. GODETTE.
• Court: North Carolina Supreme Court

125 S.E. 24

188 N.C. 497

STATE v. GODETTE.

No. 148.

Supreme Court of North Carolina

October 29, 1924

Appeal from Superior Court, Craven County; Daniels, Judge.

John Godette was convicted of aiding and abetting in transportation of intoxicating liquors, and appeals. No error.

The Fourth Amendment to the United States Constitution prohibiting unlawful searches, is directed only against the federal government and its agencies, and not against individual conduct of state officials.

Ernest M. Green and W. B. R. Guion, both of New Bern, for appellant.

Jas. S Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

CLARKSON J.

The defendant was convicted in the court below of aiding and abetting in the transportation of intoxicating liquors and sentenced to be confined in the common jail of Craven county for a period of 18 months, to be assigned to the county roads.

There are 30 exceptions and assignments of error made by defendant in the case on appeal. The brief is confined to a discussion of the validity of the evidence obtained from an examination of an automobile, which contained liquor, without a search warrant. The other exceptions are deemed to be abandoned. Rules of Practice in the Supreme Court, part of rule 28 (185 N.C. 798), is as follows:

"Exceptions in the record not set out in appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him." Bank v. Smith, 186 N.C. 640, 120 S.E. 215.

At the close of the state's evidence:

"The defendant again renewed his objection to the testimony of the officers acquired through the unlawful search, and especially pleaded the protection of the federal Constitution, in particular the Fourth and Fifth Amendments, the Constitution of the state of North Carolina, art. 1, §§ 11 and 15, and chapter 1 of the Public Laws of 1923; moved to strike out all such questions and answers, and moved that the action be dismissed, that the jury be instructed that, if they found from the evidence the facts to be as testified by the witnesses, they should return a verdict of not guilty."

The court below overruled the motion, and the defendant excepted. At the close of all the evidence, the defendant renewed his motion and all of his objections, which were overruled, and defendant excepted. There was a verdict of guilty, and, from the judgment pronounced, the defendant excepted and assigned error, in accordance with the exceptions taken, and appealed to the Supreme Court. This brings us to consider the law and the evidence in the case.

Const. U.S. Amend. 4, is as follows:

"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 warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Fifth Amendment to the Constitution of United States is as follows:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Article 1, § 11, of the Constitution of North Carolina, is as follows:

"In all criminal prosecutions every man has the right to be informed of the accusation against him and to confront the accusers and witnesses with other testimony, and to have counsel for his defense, and not be compelled to give evidence against himself or to pay costs, jail fees, or necessary witness fees of the defense, unless found guilty."

Article 1, § 15, supra, is as follows:

"General warrants, whereby any officer or messenger may be commanded to search suspected places, without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence, are dangerous to liberty and ought not to be granted."

The Legislature of this state, Public Laws 1923, c. 1, § 6 (known as the Turlington or Conformity Act) in part, is as follows:

"When any officer of the law shall discover any person in the act of transporting, in violation of the law, intoxicating liquor in any wagon, buggy, automobile, water or air craft or other vehicle, it shall be his duty to seize any and all intoxicating liquor found therein being transported contrary to law. Whenever intoxicating liquor transported or possessed illegally shall be seized by an officer he shall take possession of the vehicle and team or automobile, boat, air or water craft, or any other conveyance, and shall arrest any person in charge thereof."

Provision is made for the owner to give bond with sureties for return of property on day of trial to abide judgment of court, etc., and the following proviso is in the section:

"Provided, that nothing in this section shall be construed to authorize any officer to search any automobile or other vehicle or baggage of any person without a search warrant duly issued, except where the officer sees or has absolute personal knowledge that there is intoxicating liquor in such vehicle or baggage."

The Constitutions of the United States and North Carolina are the fundamental and organic laws of our land. The courts should be careful to uphold the provisions.

The defendant in his brief says: "The General Assembly of North Carolina, still true to the ideals of the fathers, inserted the above proviso" in what is known as the Turlington or Conformity Act, supra. The question presented: Was the testimony of the officers and the intoxicating liquor seized admissible without a search warrant? We are of the opinion that both were admissible.

We must consider the evidence. The solicitor of the Fifth judicial district, Jesse H. Davis, employed a detective, E. H. Gattis, to work in Craven and Carteret counties, and obtain evidence looking towards the breaking up of the unlawful manufacture and sale of liquor. The detective was co-operating with the federal prohibition agents. Prior to the day Godette, the defendant, was arrested, the detective saw the defendant and one Ward at a still. In a conversation he heard Godette say he was to deliver a load the next night at 9 o'clock in New Bern. On this and other information he had as to who was going to bring it, he informed the solicitor, the morning before the night the defendant was arrested, and notified the solicitor to get his men ready and look out. Gattis testified that there was not only Godette, but 5 cars from Raleigh down there. "I knew I could clean up the whole gang." He told Solicitor Davis about the 5 cars from Raleigh, and that they would buy it at wholesale in 100 gallon lots.

That night, September 20, 1923, the solicitor, Jesse H. Davis, E. H. Gattis, Capt. Ed. Belangia, chief of police of New Bern, Lieut. Gus Ipock, a policeman, Deputy Sheriff Bill Whitford, and Roy Manning, district United States marshal, went to the Neuse river bridge about 7 o'clock and waited. About 9 o'clock, two cars came upon the bridge, one behind the other. John Godette, the defendant, came along in his Cadillac car, driving slow, and close behind him, about 25 yards, was a Buick car. Capt. Belangia, Marshal Manning, and Lieut. Ipock were in Manning's car. It was turned around and came across the bridge, and went up South Front street and followed behind the two cars (the Buick and Cadillac). They went up South Front street to Spring street and turned into Spring street, then up to New South, then into German street. When they came up about midway German street, the Buick was parked on the left-hand side. Two people were in the car trying to start it, and as Capt. Belangia and Deputy Manning got close to the car, they jumped out and ran. The Cadillac had also stopped about 30 feet away, just across the street. By the time the officers got to the Buick, the two people had made their escape. Some one remarked, "Stop the Cadillac." Ipock hollered to the driver to stop and fired on the ground, and the Cadillac left at a rapid speed, but returned in 5 or 10 minutes. Capt. Belangia said he did not have personal knowledge that liquor was in the Buick car; he could not tell as it passed him, but it looked like it was loaded. When defendant returned, he stopped his car opposite, and Capt. Belangia "told him to consider himself under arrest, and he said 'all right.' " Capt. Belangia testified:

"I asked him if the Buick was his car, and he said, 'I don't know; I will have to go see.' He got out of the Cadillac, went over to the Buick and behind it, looking at it, and said, 'Yes, sir, that is my car.' He said that it had been missing two or three days."

Capt. Belangia was asked:

"Q. Was there anything in the Buick car to your knowledge? A. Well, it smelt like whisky.

Q. Do you know how much there was in it? A. 89 gallons."

Lieut. Ipock testified, in part:

"I was with the party on the bridge. We were there waiting for some cars. We had been talking about whisky haulers. I was standing by the automobile when John (the defendant) came along with his car, and right behind it, as near as it could follow, was this Buick car. It was loaded with something, and there was a few of the containers that were not covered that I could see. * * * We saw the Buick stop in front of Geo....