State v. Grover Littleton.

• Citation: 108 W.Va. 494
• Decision Date: 28 January 1930
• Docket Number: (No. 6533)
• Court: Supreme Court of West Virginia
• Parties: State v. Grover Littleton.

108 W.Va. 494

State

v.Grover Littleton.

(No. 6533)

Supreme Court of Appeals of West Virginia.

Submitted January 21, 1930.

Decided January 28, 1930.

1. Criminal Law Rule That Admissibility of Evidence is Un-

affected by Illegality of Means by Which Obtained is Qualified by Constitutional Prohibitions Against Compelling Accused to Testify Against Himself and Against Unreasonable Searches and Seizures (Const, art. 3, §§ 5, 6).

While generally the admissibility of evidence is not affected by the illegality of the means by which the evidence is obtained, this general rule is qualified by section 5 of Article 3 of the Constitution, which provides that no person in any criminal case shall be compelled to be a witness against himself and by section 6 of the same Article which inhibits unreasonable searches and seizures. Point 7, syllabus, State V. Wills, 91 W. Va. 659. (p. 495.)

2. Searches and Seizures Accused May Waive Constitutional

Right Against Unreasonable Searches and Seizures (Const, art. 3, § 6).

The defendant may waive this constitutional right at the time the search and seizure is made. (p. 497.)

3. Criminal Law Searches and Seizures Defendant's Reply, "Go Ahead," to Officers Who Stated They Had Warrant to Search His Home For Stolen Goods, Held Not Waiver of Constitutional Rights and Consent to Search; Evidence Obtained by Search Without Defendant's Consent is Inadmissible Without First Introducing in Evidence Legal Search Warrant or Satisfactorily Accounting For Its Nonproduction (Const, art. 3, § 6).

Defendant's reply "Go ahead," to officers, who, upon their entrance into his home, stated in effect that they had a warrant to search his home for stolen goods, does not amount to a waiver of his constitutional rights and a consent to such search; and evidence obtained under such search may not be admitted without first introducing in evidence a legal search warrant, issued by competent authority on a proper showing of probable cause, under which such officers acted, or satisfactory accounting for its non-production, (p. 495.)

4. Burglary Larceny Possession of Stolen Goods is Not Alone Even Prima Facie Evidence That Possessor is Thief, or Burglar; Exclusive Possession of Property Recently Stolen May be Considered With Other Circumstances on Issue Whether Possessor is Thief.

The possession of stolen goods is not of itself even prima facie evidence that the person in whose possession the stolen goods are found, is the thief, or that he is guilty of breaking and entering the house from which the goods were stolen; but the exclusive possession and control of property recently stolen, are circumstances tending to show that the person found in possession is the thief, and the jury may consider them in connection with all other circumstances and facts in proof. Point 2, syllabus, State v. Littleton, 77 W. Va. 804.. (p. 499.)

Error to Circuit Court, Marshall County. Grover Littleton was convicted of burglary, and he brings error.

Reversed; verdict set aside; new trial ordered.

D. B. Evans and Everett F. Moore, for plaintiff in error. Howard B. Lee, Attorney General, and W. Elliott Nefflen, Assistant Attorney General, for the State.

Woods, Judge:

Defendant was charged and convicted of breaking and entering, on the 12th day of September, 1928, a certain barn and building belonging to Frank L. Reid, not a dwelling house or outhouse adjoining; thereto or occupied therewith, in Marshall county, and stealing a riding saddle of the value of $25.00, and one pair of check lines of the value of $5.00. There was a general verdict of guilty, under which he was sentenced to the penitentiary. While the burglary may be committed without actual larceny, it could not have been found here properly by the jury without finding both. This fact becomes important in considering certain evidence, the admissibility of which was challenged by the defendant.

The fact that a part of the property stolen was found a few days thereafter in the home of the defendant was admitted in evidence. This part of the testimony was obtained by virtue of the search of the defendant's home by the officers. True, the officers making the search testified that they not only had a search warrant but a warrant for the defendant, as welL The search warrant was not introduced on the trial, nor was its absence accounted for. An excerpt from the testimony of the officer very fairly presents the question of its admissibility: "Q. "When you arrived at the home of Grover Littleton, whom did you find there? A. Found Mr. Littleton there Grover Littleton. Q. What did you say to him? A. I went into his house and told him we had a warrant and was going through his place, to look his place over for some stolen harness. Q. What was his reply? A. Go ahead. Q. Say anything further? A. No, sir. Said he didn't have any." The defendant's version is as follows: "Q. Tell the jury whether or not the officer said he had a search warrant when he came to search your premises. A. Well, one came to the back door and one to the front door, and I went to the back door when he come in and said 'good evening, ' and my wife said 'good evening.' And I opened the door for him, and he come in and went currying all around, and I said, 'What do you want?' He said 'I've got a search warrant here for you.' And I said, ' What for?' and he said, 'Some stolen stuff.' And I said, 'What stolen stuff? We ain't got no stolen stuff here'." The fact is stressed by the state that the officer in his statement to the defendant did not qualify the kind of warrant. The evidence does not show that he made any arrest of the defendant by virtue of the general warrant for his arrest prior to the search. Under the evidence we are of opinion that the defendant was warranted in believing that the officer meant that he had a search warrant. To determine the exact question here in issue, we must advert to general principles respecting the introduction of evidence obtained under search and seizure warrants. While, generally, the admissibility of evidence is not affected by the illegality of the means by which the evidence is obtained, in the case of State v. Wills, 91 W. Va. 659, this general rule is held to be qualified by section 5 of Article 3 of the Constitution, which provides that no person in any criminal case shall be compelled to be a witness against himself, and by section 6 of the same article, which inhibits unreasonable searches and seizures. So, where evidence obtained by the latter means is sought to be used against the defendant in a criminal case, the state must not only show that a search warrant was issued under which the officer acted, but produce it in evidence as a basis for the admission of such testimony, or satisfactorily account for its non-production. State v. Joseph, 100 W. Va. 213; State v. Slat, 98 W. Va. 448. And, where the loss of the warrant is satisfactorily shown, the further burden is cast upon the state, in order that the articles seized and the testimony of the officers making such search may be admitted in evidence, to show that such warrant was in proper form to authorize the search of the defendant's premises. State v. Neal, 96 W. Va. 456. We are committed to the doctrine announced in the foregoing cases. Well ordered procedure in criminal trials, if nothing else, inveighs against the taking of any step now that would unstabilize it....