State v. Munger

• Decision Date: 24 November 1931
• Docket Number: 1702
• Citation: 43 Wyo. 404,4 P.2d 1094
• Parties: STATE v. MUNGER
• Court: Wyoming Supreme Court

4 P.2d 1094

43 Wyo. 404

STATE v. MUNGER

No. 1702

Supreme Court of Wyoming

November 24, 1931

APPEAL from the District Court, Goshen County, CYRUS O. BROWN Judge.

The defendant Dick Munger was convicted on a charge of having possession of intoxicating liquor and he appeals.

Reversed and remanded.

For the appellant there was a brief and oral argument by J. M Roushar, of Torrington, Wyoming.

Defendant and one Joe Hand were sitting in a closed automobile during a celebration at old Fort Laramie. Joe Hand is a Sioux Indian. The sheriff of Goshen County opened the automobile door and arrested Joe Hand for drunkenness. In taking the Indian from the car, the sheriff discovered a bottle of liquor lying on the seat of the automobile. The sheriff had no warrant for the arrest of either defendant or Hand, nor a search warrant for the search or seizure of liquor. Defendant was prosecuted on a charge of having possession of intoxicating liquor. At the trial he petitioned for the suppression of the liquor found in the car on the ground that the search and seizure of said liquor was without a search warrant and unlawful. The petition to suppress was overruled. Defendant was found guilty and fined $ 200.00, and sentenced to sixty days imprisonment in the county jail. The arrest of Joe Hand for drunkenness in the absence of a showing of improper language or disorderly conduct was unlawful. Mere drunkenness is not an offense in Wyoming. The search and seizure of the liquor as an incident to an unlawful arrest, the officer not having a search warrant was unlawful, and the trial court committed reversible error in denying defendant's petition to suppress the liquor as evidence. There is no evidence that the sheriff had probable cause to believe that liquor was possessed by the occupants of the car. State v Kelly, 38 Wyo. 455; State v. George, 32 Wyo. 223; Ingraham v. State, (Okla.) 290 P. 244; Skinner v. State, (Okla.) 280 P. 851. The verdict was contrary to the evidence and contrary to law. The court erred in giving Insts. No. 6 and 7 over the objections of defendant, there being no evidence to support either. The court erred in sustaining objections to questions by defendant's counsel in cross examination of witness Hand. McKelvey on Evidence, Sec. 259.

For the respondent there was a brief by James A. Greenwood, Attorney General, Richard J. Jackson, Deputy Attorney General, and Phillip S. Garbutt, Assistant Attorney General, and oral argument by Mr. Garbutt.

The arrest of Joe Hand was lawful. 1474 C. S. It is the duty of a sheriff to make arrests to prevent a breach of the peace. Crossland v. Shaw, (Pa.) 12 A. 849; Quinn v. Heisel, 40 Mich. 576; Hayes v. Mitchell, 80 Ala. 183; State of Missouri v. Boyd, 108 Mo.App. 518. The liquor was discovered without a search. The word "search" is defined by 35 Cyc. 1264, and the purpose of the limitation is stated in 24 R. C. L. 703. The specifications of error as to sustaining of objections to evidence are not well taken, there being no offer of proof of what defendant expected to introduce. Casper Motor Co. v. Marquis, 31 Wyo. 115; Padlock Ranch, Inc. v. Smith, et al., 38 Wyo. 393. A peace officer is justified in making an arrest when he believes there is immediate danger of a breach of the peace. Quinn v. Heisel, supra, and other cases cited above. The liquor was discovered as an incident to the arrest and a search warrant was unnecessary. 35 Cyc. 1264, 24 R. C. L. 703. The circumstances under which the evidence was found were sufficient to justify conviction. State v. Powers, 33 Wyo. 424; State v. Frantz, 38 Wyo. 352. Inst. No. 6 is not erroneous as under the evidence the whiskey was in the possession of one or the other or both. There being no offer of proof as to the evidence expected to be introduced by questions 266 and 286, it was error to sustain objections thereto.

KIMBALL, Chief Justice. BLUME and RINER, JJ., concur.

OPINION

KIMBALL, Chief Justice.

The defendant appeals from the sentence on a verdict finding him guilty of possessing whiskey contained in a pint bottle found and seized by the sheriff in a search of defendant's automobile.

Before the trial, defendant filed a petition alleging that the search of his automobile and the seizure of the whiskey were unlawful, and asking that all evidence obtained thereby be suppressed. The petition was denied, and the evidence was used by the state on the trial. The denial of the petition is assigned as error.

On August 15, 1930, there was a large crowd present at a celebration at old Ft. Laramie in Goshen County. Among those in attendance were a number of Indians from a reservation in a neighboring state. The sheriff testified that some of the Indians "were getting a lot of liquor," and that one, named Joe Hand, was drunk when the sheriff saw him talking with defendant just outside the dance hall at 10 o'clock at night. Hand and defendant left the dance hall and, followed by the sheriff, went some 100 rods to defendant's automobile which was parked among many other cars. Hand and the defendant entered the car and sat down, closing the door after them. The sheriff remained near the car for some time, and then opened the car door and for about twenty minutes talked with Hand and defendant. The sheriff did not remember the conversation, but he evidently was confirmed in the opinion that Hand was drunk. Hand was arrested for drunkenness, and taken from the car. Then the sheriff, by aid of a flashlight, discovered the bottle containing whiskey which, according to his testimony, was on the seat between defendant and the place where Hand had been sitting. Defendant testified that the bottle was either in Hand's lap or between his legs, and as he was taken from the car, the bottle fell to the running board. When the liquor was found and seized, Hand claimed it as his, saying defendant had nothing to do with it. At the trial, however, Hand testified that the whiskey belonged to defendant. The defendant was not arrested on the night of the 15th, but was told to appear at the county seat the next day. The next day he was arrested on a warrant issued on a complaint charging him with unlawful possession of the seized liquor.

The state, of course, conceded that the liquor was seized without a warrant either for arrest or for search and seizure. Generally speaking, no search, or search and seizure, is reasonable or lawful, unless made under a search warrant in due conformity with the constitution and other laws. State v. George, 32 Wyo. 223, 239, 231 P. 683, 687. There are cases holding that an automobile may be lawfully searched, and contraband liquor seized, without a warrant, if the securing of a warrant was not reasonably practicable, and the officer had reasonable or probable cause for believing the automobile contained liquor illegally transported or possessed. Carroll v. United States, 267 U.S. 132, 69 L.Ed. 543, 45 S.Ct. 280, 39 A. L. R. 790; State v. Kelly, 38 Wyo. 455, 268 P. 571. When it appears that the search and seizure was without a warrant, the state or officer seeking to justify the search, must assume the burden of proving facts showing probable cause. In the language of the opinion in Carroll v. United States, supra (p. 156 of 267 U.S. 132, 45 S.Ct. 280, 286), "the seizing officer acts unlawfully and at his peril unless he can show the court probable cause."

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