State v. Myers

Citation36 Idaho 396,211 P. 440
PartiesSTATE, Respondent, v. W. A. MYERS and V. A. FITZGERALD, Appellants
Decision Date04 December 1922
CourtUnited States State Supreme Court of Idaho

ILLEGAL SEIZURE AS EVIDENCE-REMEDY OF AGGRIEVED DEFENDANT-NATURE OF PROCEEDINGS-NOT REVIEWABLE IN MAIN ACTION-NONEXPERT EVIDENCE ON HANDWRITING - CONSPIRACY - ADMISSIBILITY OF EVIDENCE-ACTS AND DECLARATIONS OF CO-CONSPIRATOR-LACK OF CAPACITY TO COMMIT CRIME.

1. An application on behalf of a defendant in a criminal case to the trial court for the return of papers illegally seized creates a collateral issue, whether made prior to or at the time of the trial of the person against whom such papers are sought to be introduced as evidence. A proceeding for the recovery of such papers so taken is of a civil nature, and under our procedure is no part of a criminal action.

2. Evidence, if competent and relevant, is admissible irrespective of the manner in which it was obtained. If a defendant in a criminal action is entitled to the possession of papers which have been illegally seized and are about to be used as evidence against him, he must seek his remedy in an independent proceeding.

3. An application by the defendant in a criminal action for the return to him of papers illegally seized must be regarded as relating to an independent proceeding, and the decision of the trial court thereon cannot be reviewed on appeal in the main action.

(McCarthy Dunn and Lee, JJ., do not concur in the first three paragraphs of syllabus.)

4. Property found in the possession of a defendant at the time of his lawful arrest, and relevant and material to the prosecution, may be retained by the prosecution and used against defendant on his trial, although there was no warrant of search and seizure at the time such property was taken.

5. One who is familiar with another person's handwriting from carrying on a correspondence with him or from opportunities afforded in frequently handling writings known to have been written by such person, is competent as a nonexpert to give his opinion in regard to the genuineness of a letter purporting to have been written by such person. The weight of such evidence is a question for the jury.

6. Where a conspiracy relates to a series of crimes rather than to a single crime, evidence that one of the conspirators committed a crime similar to that for which both of two defendants are on trial is admissible.

7. The acts and declarations of a co-conspirator, done and made in furtherance of a common design, are admissible against all the other parties to the conspiracy, whether done or made in their presence or with their knowledge or not.

8. One who is personally incapable of committing the offense of receiving a bribe, on account of not being himself invested with official capacity, may be guilty of conspiring to commit the offense of bribery with another person who is capable of committing the offense.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Reddoch, Judge.

Affirmed.

Appellants were convicted of the crime of conspiracy. Judgment affirmed.

Perky & Brinck, W. H. Casady and J. T. Pence, for Appellants.

It is error to refuse to return to a defendant property taken from him by unlawful search and seizure, and it is error to admit evidence upon the trial as to property so taken when timely application for its return is made. (Weeks v. United States, 232 U.S. 383, Ann. Cas. 1915C, 1177, 34 S.Ct. 341, 58 L. ed., 652, L. R. A. 1915B, 834; Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319; Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Tucker v. State, 128 Miss. 211, 90 So. 845; People v. Margelis, 217 Mich. 423, 186 N.W. 488; State v. Gibbons, 118 Wash. 171, 203 P. 390; Chicago v. Disalvo, 302 Ill. 85, 134 N.E. 5; State v. Simmons, 183 N.C. 684, 110 S.E. 591; Youman v. Commonwealth, 189 Ky. 152, 224 S.W. 860; Rippey v. State, 86 Tex. Cr. 539, 219 S.W. 463; Hughes v. State, 145 Tenn. 544, 238 S.W. 588; State v. Rowley (Iowa), 187 N.W. 7; Sioux Falls v. Walser (S. D.), 187 N.W. 821; State v. District Court, 59 Mont. 600, 198 P. 362; People v. Kinney, 185 N.Y.S. 645; State v. Peterson, 27 Wyo. 185, 194 P. 342; Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654.)

A distinction is made where the property so taken was unlawfully in the possession of the defendant. (State v. Anderson, 31 Idaho 514, 6 A. L. R. 527, 174 P. 124; United State v. Welch, 247 F. 239; State v. Krinski, 78 Vt. 162, 62 A. 37; State v. Suitor, 78 Vt. 391, 63 A. 182.)

The use in evidence of property so taken not only violates the provisions against unlawful search and seizure and against self-incrimination, but also the constitutional guaranty of due process of law. (State v. Height, 117 Iowa 650, 91 N.W. 935.)

Evidence of the commission by defendant of other crimes than that charged is irrelevant, and if not within the recognized exception, its admission is error. (Underhill, Crim. Ev., 2d ed., sec. 87; 1 Bishop, New Crim. Proc., sec. 1124, subd. 3; Wigmore, Evidence, sec. 305; People v. Hurley, 126 Cal. 351, 58 P. 814; State v. Marshall, 2 Kan. App. 792, 44 P. 49; 1 Wharton, Crim. Ev., 10th ed., p. 59; 16 C. J. 587; State v. Eder, 36 Wash. 482, 78 P. 1023.)

Roy L. Black, Attorney General, and James L. Boone, Assistant, for Respondent.

The proceeding for the recovery of an exhibit is independent of the criminal proceeding in which it was sought to use an exhibit as evidence. (People v. Mayen (Cal.), 205 P. 435.)

It was not error for the court to admit in evidence exhibits obtained without search-warrant. (State v. Anderson, 31 Idaho 514, 174 P. 124; People v. Mayen, supra.)

"Using Evidence Obtained by Illegal Search and Seizure," by John H. Wigmore, American Bar Assn. Journal, August, 1922, and cases cited therein.

Anyone who is familiar with a person's handwriting from having seen him write only once is competent as a nonexpert to give his opinion as to the genuineness of the writing. (Sec. 429, Wharton, Crim. Evidence; Tam Shi Yam v. United States, 224 F. 422; Parker v. Commonwealth, 141 Ky. 509, 133 S.W. 209; State v. Mahoney, 24 Mont. 281, 61 P. 647; State v. McDaniel, 39 Ore. 161, 65 P. 520; Clowers v. State, 17 Okla. Cr. 155, 184 P. 790.)

It is not error to admit in evidence other similar transactions of defendant's co-conspirators. (16 C. J. 665, sec. 1327, note 4; Howle v. State, 15 Ala. App. 185, 72 So. 759; State v. Flood, 148 Iowa 146, 127 N.W. 48; Boyle v. United States, 257 F. 803; Hays v. State, 90 Tex. Cr. 192, 236 S.W. 482; People v. Schmidt, 33 Cal.App. 426, 165 P. 555.)

An officer has the right at the time of making an arrest to search the person of the party or the place where the party is found for articles used in connection with or which may be used as evidence to prove the commission of the offense. ( Smith v. Jerome, 93 N.Y.S. 202; State v. Brown, 83 Wash. 100; 145 P. 69; Bishop's New Crim. Procedure, sec. 211; People v. Jakira, 118 Misc. 303, 193 N.Y.S. 306, 309, 313, 314; People v. Manko, 189 N.Y.S. 357; United States v. Wilson, 163 F. 338, 343; Getchell v. Page, 103 Me. 387, 69 A. 624, 18 L. R. A., N. S., 253; Wiggin v. State (Wyo.), 206 P. 373; People v. Cona, 180 Mich. 641, 147 N.W. 525; State v. District Court, 59 Mont. 600, 198 P. 362; State v. Mausert, 88 N.J.L. 286, 95 A. 991; note, L. R. A. 1916C, 1014-1017; State v. Hassan, 149 Iowa 518, 128 N.W. 960; May v. United States, 199 F. 53, 117 C. C. A. 431, 57 L.Ed. 1353; State v. Ware, 79 Ore. 367, 155 P. 364; State v. Laundy, 103 Ore. 443, 204 P. 958, 975, 206 P. 290; United States v. Snyder, 278 F. 650.)

BUDGE, J. Rice, C. J., concurs. MCCARTHY, J., concurring in part and dissenting in part.

OPINION

BUDGE, J.

Appellants were convicted of the crime of conspiracy to ask and receive bribes. This appeal is from the judgment.

From the record it appears that the appellants are dentists, licensed to practice in this state; that from June, 1918, until March, 1919, appellant Myers was secretary of the board of dental examiners; and that appellant Fitzgerald was district manager for a foreign dental organization.

Appellants make nine assignments of error, upon which they rely for a reversal of the judgment in this case, as follows:

1. The court erred in denying defendants' petitions for the return to Dr. Myers of state's exhibit 4.

2. The court erred in the admission in evidence of state's exhibit 4.

3. The court erred in admitting the testimony of witness White.

4. The court erred in the admission of state's exhibit 10.

5. The court erred in denying defendants' motion to strike the testimony of Adams.

6. The court erred in denying defendants' motions to strike from the record and to instruct the jury to disregard all the testimony of Adams.

7. The court erred in denying the motion of defendants for an instruction advising the jury to acquit.

8. The evidence is insufficient to sustain the verdict.

9. The information fails to state a public offense.

Under the first three assignments of error, which will be considered together, counsel for appellant contend that it is error to refuse to return to a defendant property lawfully in his possession taken from him by unlawful search and seizure, and it is error to admit evidence upon the trial as to property so taken when timely application is made for its return.

Prior to the trial, a hearing was had before the trial judge upon applications by appellants for the return of certain papers alleged to have been surreptitiously removed from appellant Myers' residence. At this hearing, evidence was adduced tending to show that Myers was arrested on September 4, 1919 and...

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