State v. Mehlhaff

• Decision Date: 13 October 1947
• Docket Number: 8876.
• Citation: 29 N.W.2d 78,72 S.D. 17
• Parties: STATE v. MEHLHAFF.
• Court: South Dakota Supreme Court

29 N.W.2d 78

72 S.D. 17

STATE v. MEHLHAFF.

No. 8876.

Supreme Court of South Dakota

October 13, 1947

Wm. Ochsner, of Wessington Springs, and Max Royhl and George E. Longstaff, both of Huron, for appellant.

Sigurd Anderson, Atty. Gen., Charles P. Warren Asst. Atty. Gen., and Charles R. Hatch, State's Atty Jerauld County, of Wessington Springs, for respondent.

SICKEL Presiding Judge.

The state's attorney of Jerauld county filed an information charging Ernest Mehlhaff with the larceny of fifty-five bushels of barley of the value of $67.10. Defendant pleaded not guilty. The jury found the defendant guilty as charged in the information, and defendant has appealed.

One of appellant's assignments of error relates to search and seizure. Adolph Heuther owned a half section of land in Jerauld county near Alpena upon which he lived. He also owned another half section of land which was located about a mile north and across the road, and upon which was situated an unoccupied house, barn and double granary. Heuther farmed this land and was in possession of it during the years 1945 and 1946. He raised some barley on this farm and stored it in the granary, and it was a part of this barley which the defendant was charged with taking. On April 16, the morning after the barley was taken, Heuther went to Wessington Springs, and obtained a warrant for Mehlhaff's arrest. This warrant was delivered to Hemmelman, the sheriff, who with Heuther drove to Mehlhaff's farm nearly two miles north of the place where the barley was stored. The sheriff testified that he saw defendant's car and trailer in the yard; that the trailer was standing halfway between the barn and the house; that he saw some two-row barley in the corners of the trailer box; that defendant was then in the barn; that there was a grain bin and feedbox just inside the barn door that on the ground just inside the barn was piled some oats and two-row barley. Defendant objected to this testimony on the ground that it was incompetent, and that it amounted to an unlawful search of his property. These objections were overruled and the rulings have been assigned as error.

The right of the people to be secure against unreasonable searches and seizures is protected by the Fourth Amendment to the United States Constitution and by Article VI, § 11, of the Constitution of South Dakota. No person may be compelled in any criminal case to be a witness against himself. Fifth Amendment to the United States Constitution and Article VI, § 9, South Dakota Constitution. However these constitutional guaranties have no application to the right of officers to search the place of arrest and seize such property as is connected with the crime charged, without a search warrant. Such right is incidental to a lawful arrest, and may extend to the premises or surroundings under defendant's immediate control. Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, 51 A.L.R. 409; Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231; State v. George, 32 Wyo. 223, 231 P. 683; 56 C.J., Searches and Seizures, §§ 30 and 93; Annotations: 51 A.L.R. 424, 74 A.L.R. 1387, 82 A.L.R. 782.

Hemmelman, the sheriff, went to defendant's farm on the morning of April 16 with a warrant for the arrest of defendant. He found the defendant at home and the arrest was made at that time and place. While there the sheriff made the observations referred to above in regard to barley which he found in the trailer and in the barn. These observations related to facts which were under the control of defendant and which were subject to use in proving the offense with which the defendant was charged. If these observations may be rightfully regarded as a 'search', and even though the sheriff had no search warrant at the time, still such search was incidental to the arrest, and it did not extend beyond premises and surroundings which were then under the immediate control of defendant. We find no error in admitting the testimony of the sheriff, Hemmelman, regarding the barley found on defendant's premises.

Hemmelman, the sheriff, testified that he saw fresh tracks indicating that a car and trailer had turned around on the intersection east of Heuther's place. He did not identify these tracks as tracks made by defendant's vehicle, and we fail to see how the defendant could have been prejudiced by this testimony.

Heuther also testified in regard to car and trailer tracks. He stated that on the morning of April 16 he rode in the sheriff's car and saw the tracks of a car and trailer going north on the highway, through the gate and into the farmyard through the driveway of the granary where the barley was stored, and back to the highway; that he followed those tracks north upon the highway, into defendant's yard and over toward the barn; that defendant's car and trailer were in the yard; that he remained in the sheriff's car and rode away with him. This testimony was received at the trial over defendant's objection. Defendant says: 'No attempt was made by the State to identify the tracks as similar or identical with the tracks of the defendant's automobile and trailer.' Evidence relating to the identity of the defendant as the person who committed the crime charged is permitted to take a broad range. 22 C.J.S., Criminal Law, § 616, subsec. b(1). 'Any fact that legitimately tended to connect appellant with the commission of the crime was admissible.' Foreman v. State, 214 Ind. 79, 14 N.E.2d 546, 548. ...