State v. McCollum

Decision Date27 September 1943
Docket Number28809.
Citation17 Wn.2d 85,141 P.2d 613
CourtWashington Supreme Court

On petition for rehearing.

Rehearing denied.

For former opinion, see 136 P.2d 165.

Appeal from Superior Court, Snohomish County; Charles R. Denney judge.

John C Richards, of Everett, and Will G. Beardslee and George F Ward, both of Seattle, for appellant.

Leslie R. Cooper, C. P. Brownlee, and Philip Sheridan, all of Everett, for respondent.


Rehearing denied.

MILLARD, Justice (dissenting).

Each of nine judges of this court was elected, and qualified, for a term of six years under Art. 4, § 3, of our state constitution. Each of those judges holds the office for the term of six years, unless he dies, resigns or is removed by impeachment proceedings prior to the expiration of that term. The limits of the term can not be increased during that six-year term, nor may the legislature, other than by impeachment proceedings, shorten that term of office. Pursuant to Laws of 1941, chapter 201, one judge of this court became a member for such period of time as one of the nine judges is absent from this state in the active service of the United States. The questions whether that statute is constitutional and/or whether we have at this time a membership on this court of nine or ten judges is not now material.

This cause was heard by the court en banc, with eight of the nine elected judges and the appointed judge sitting. Two of those nine judges were of the view that the admission in evidence of the pistol was prejudicial. Three judges concluded that the admission in evidence of the pistol constituted error but was not prejudicial. Four judges deemed no error was committed in admitting the pistol in evidence but expressed the opinion that if the admission of such evidence was erroneous it was clearly prejudicial and entitled the appellant to a new trial; that is, five judges held that the search violated the constitutional rights of appellant and six of the judges expressed the opinion that if it were error to admit the pistol in evidence such error was prejudicial. The opinion is of no value as a precedent, as there is not a constitutional majority of this court in agreement on the determinative question Before us.

There is not an English speaking court in the world which holds that evidence taken without a search warrant, as in the case at bar, is admissible against the defendant. All the cases hold that in such cases the defendant's conviction has no sufficient foundation to support it without the use of evidence which had been unlawfully obtained, therefore the judgment of conviction must be reversed.

The only authority upon which the socalled majority opinion in the case at bar is based is our opinion in State v Much, 156 Wash. 403, 287 P. 57, in which we disregarded the provision of the constitution securing the right of the people against unlawful searches and seizures and heeded not the constitutional provision that no person shall be compelled in any criminal case to be a witness against himself. In State v. Much, supra, we held that Rem.Rev.Stat. §§ 2237 to 2240-1, inclusive, which provided for the issuance of search warrants in certain cases and that it was unlawful to enter and search any private dwelling house or place of residence without the authority of a search warrant, should be construed together hence no statutory authority existed for the issuance of a search warrant in a murder case. We said, in effect, that as we had no statute authorizing the issuance of search warrants for the evidence of the instruments of a murder the constitutional prohibition against the invasion of one's home without authority of law should be disregarded; otherwise the law against the commission of the crime of murder could not be enforced.

Constitutional limitations and guarantees should not be contravened and treated as mere scraps of paper on the ground that a law cannot be enforced if the constitution is followed. This should be a government of laws, and not of men. Conceding, arguendo, that there is no statutory authority for the issuance of a search warrant in a murder case, that lack constitutions no justification for the unlawful seizure of appellant's pistol and admitting it in evidence against him.

In Jokosh v. State, 181 Wis. 160, 193 N.W. 946, 977, is the following language which, except that the end sought was the enforcement of the prohibition law, is apt in the case at bar: '* * * It is also said that if searches such as this cannot be made the prohibition law cannot be enforced. This may be true in part or it may be true in whole. The answer is that an article of the Constitution having its origin in the spirit if not in the letter of the Magna Carta prevents it, and that it is the duty of the court to sustain and enforce the Constitution in its entirety, and not to permit what may seem to be presently a desirable mode of procedure to annul such fundamental portions of our organic law as the freedom from unlawful searches. The importance of such a provision may be lost sight of in times of peace in a well-organized and well-administered state, but in times of stress or dissensions its value is as great as those who inserted it in the Constitution conceived it to be.'

In Hoyer v. State, 180 Wis. 407, 193 N.W. 89, 92, 27 A.L.R. 673, deputy sheriffs, without a search warrant, opened the door of defendant's automobile and removed bottles of intoxicating liquor from the car which they seized together with the liquor. Defendant was convicted of the crime of unlawful transportation of intoxicating liquors. On appeal the supreme court of Wisconsin held that the intoxicants taken without a search warrant were not admissible in evidence against defendant as being in violation of the constitutional provision securing the right against unreasonable searches and seizures and also in contravention of the constitutional provisions that no person shall be compelled in a criminal case to be a witness against himself. The judgment was reversed, the court stating:

'For ourselves we elect to stand, as this court has heretofore stood, with the federal and other courts which consider these provisions of the Bill of Rights as embodied in constitutions to be of substance rather than mere tinsel. We hold therefore that the evidence challenged in this case was taken by the officers by unlawful search and seizure and contrary to section 11, art. 1, Wis.Const., supra, and was improperly received in evidence against him on the trial in violation of his rights under section 8, art. 1, Wis.Const.
'This court squarely aligned itself with rulings of the United States Supreme Court in Thornton v. State, 117 Wis. 338, 341, 93 N.W. 1107, 98 Am.St.Rep. 924, and State v. Murphy, 128 Wis. 201, 207, 107 N.W. 470, each of which cited with approval Boyd v. U.S., 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, and Bram v. U.S., 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568, infra.
'We firmly believe as to each of these provisions that which was said as to the right of exemption from compulsory self-incrimination in Twining v. New Jersey, 211 U.S. 78, at page 91, 29 S.Ct. 14, 16 (53 L.Ed. 97):
"It was generally regarded then (referring to the adoption of the several constitutions), as now, as a privilege of great value, a protection to the innocent, though a shelter to the guilty, and a safeguard against heedless, unfoundeed, or tyrannical prosecutions.'

'The two constitutional provisions here invoked are quite closely interwoven, and generally, as in this case, that which is obtained by unlawful search and seizure is subsequently attempted to be used to incriminate him from whom so obtained. The one violation being but a preface to the other. This view has been very fully and clearly discussed by Anderson, J., in Tucker v. State, 128 Miss. 211, 90 So. 845 [24 A.L.R. 1377], and many authorities are there cited.

' In Lang v. State , 189 N.W. 558 [24 A.L.R. 690], this court very recently set aside a conviction for murder because there were used, in evidence against defendant, statements, miscalled a confession, extorted from him by resort to personal violence and methods declared to savor of the rack and thumb screw. It is needless, perhaps, to say that we are still in accord with the views there expressed by Mr. Justice Jones speaking for this court. The statements in that case obtained from the defendant were held inadmissible because of no probative force. But this court also there stated that other cases place the rejection of such evidence on the ground that it is a violation of the constitutional guarantee against the compulsory giving of evidence against one-self, citing to that effect Bram v. U.S., 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568, supra. That view seems tacitly, if not expressly, approved in the case of Weeks v. U.S., 232 U.S. 383, 393, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1977, and expressly so approved in Gouled v. U.S., 255 U.S. 298, 306, 41 S.Ct. 261, 65 L.Ed. 647, infra, as well as in Silverthorne [Lumber] Co. v. U.S., 251 U.S. 385, 391, 40 S.Ct. 182, 64 L.Ed. 319 [24 A.L.R. 1426].

'We see no reason in logic, justice, or in that innate sense of fair play, which lies at the foundation of such guaranties why a court of justice, rejecting as abhorrent the idea of the use of evidence extorted by violation of a defendant's right to be secure in person and exempt from self-incrimination, though it may result in murder going unwhipt of justice, should yet approve of the use, in the same court of justice, by state officers, of that which has been obtained by other state officers through, and by a plain violation of constitutional guarantees of equal standing and value,...

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