State v. Pauley

• Decision Date: 08 December 1922
• Docket Number: 358
• Citation: 192 N.W. 91,49 N.D. 488
• Court: North Dakota Supreme Court

192 N.W. 91

49 N.D. 488

STATE OF NORTH DAKOTA, Respondent, v. J. W. PAULEY and Pearlie Pauley, Appellants

No. 358

Supreme Court of North Dakota

December 8, 1922

Rehearing denied January 8, 1923.

Criminal prosecution in District Court, Burleigh County, Nuessle, J.

Defendants have appealed from a judgment of conviction.

Affirmed.

Edward S. Allen, for appellants.

The dwelling house, used as a home by the defendants, cannot be searched and seizures made unless the officer making said search and seizure is authorized so to do by having in his possession search warrant duly issued, and if seizures are so made the property so taken, whether without value or only valuable as evidence cannot be permitted as evidence against the defendant. U. S. Const. 4th and 5th Amendments; N.D Const. §§ 13, 18; Boyd v. United States, 116 U.S. 616; Amos v. United States, 255 U.S. 313; Story, Const. Law, §§ 1901, 1902; Cooley, Const. Lim. 299; Sedgw. Stat. & Consol. Law, 2d ed. 498; Wharton Crim. Am. Law, § 560; Weeks v. United States, 232 U.S. 383; Silverthorne Lumber Co. v. United States, 251 U.S. 385; Flagg v. United States, 230 F. 481--483; People v. De La Meter, 182 N.W. 57; People v. Mayhew, 182 N.W. 676.

F. E. McCurdy, State's Attorney, for respondent.

BRONSON, J. BIRDZELL, Ch. J., and CHRISTIANSON, J., concur. GRACE, J., ROBINSON, J., (dissenting).

OPINION

Statement.

BRONSON, J.

Defendants were convicted of the crime of manufacturing intoxicating liquors. They have appealed from the judgment. The facts are: In February, 1922, the sheriff, the chief of police, and a deputy sheriff visited the home of defendants in Bismarck. They possessed neither a warrant of arrest nor a search warrant. At the door they told the wife of one of the defendants that they desired to see her husband. She stated that she would call him. The officers stated that they would go to see him. They proceeded down in the basement and there they found the defendants manufacturing intoxicating liquor, and there possessed of the instrumentalities so to do. They seized the equipment used in distilling the liquor and also some of the material wherewith the same was manufactured. Defendants were thereupon arrested. At the trial defendants objected to the production of this equipment and its introduction in evidence.

Upon this appeal, defendants contend that the information does not state facts sufficient to constitute a crime and that the trial court erroneously received in evidence the equipment, in violation of defendants' constitutional privileges.

Opinion.

The information alleges that defendants committed the crime of manufacturing liquor; that they did wilfully and unlawfully make, ferment, and distill a liquor which was intoxicating for a beverage. Section 10,092, Comp. Laws, 1913, prohibits the manufacture of intoxicating liquor. This section is not violative of the constitutional provision, Section 217, N.D. Const. that no person shall manufacture, for sale or gift, intoxicating liquors. The information states a criminal offense. The officers were not denied admittance within defendants' home. They were not denied the right to see defendants. It is true that they were not invited guests. But, in the basement of their home, they saw defendants in the act of committing a crime. As peace officers it was their duty to arrest defendants, then and there without a warrant. Comp. Laws, 1913, § 10,567. They did there arrest them and seized the instrumentalities through which the crime was being committed. The instrumentalities seized were of an evidentiary nature. They were a part of the res gestae in committing the crime. They were properly received in evidence. See note in 18 L.R.A. N.S. 253. Even though it should be conceded that the seizure of these instrumentalities by the officers was unreasonable and violative of defendants' constitutional rights against unreasonable searches and seizures, § 18, N.D. Const., it does not follow that the testimony of the officers or the introduction, as evidence, of such instrumentalities compels defendants in a criminal case to be witnesses against themselves, § 13 N.D. Const. Wigmore, in his work on Evidence, has elaborately considered the growth, development, and status of the principles established in the constitutional provisions quoted. He states: "It has long been established that the admissibility of evidence is not affected by the illegality of the means through which the party has been enabled to obtain the evidence. The illegality is by no means condoned; it is merely ignored." § 2183. Otherwise he states, concerning the constitutional provision compelling one to be a witness against himself, that, "it is not merely compulsion that is the kernel of the privilege, in history, and in the constitutional definitions, but testimonial compulsion." § 2263, "If there was ever any rule well settled (until the opinion in Boyd v. United States, 116 U.S. 616, 29 L.Ed. 746, 6 S.Ct. 524) it was this: That an illegality in the mode of obtaining evidence cannot exclude it, but must be redressed, or punished, or resisted, by appropriate proceedings otherwise taken. There is, therefore, no respect whatever in which the principle of the fourth amendment can be properly invoked in applying the principle of the fifth amendment." Such principles mentioned, concerning the fourth and fifth amendments to our United States Constitution, are embodied in §§ 13 and 18 of our Constitution. But it is unnecessary to discuss the principles announced in Boyd v. United States, supra, or the extent to which the same have been modified by later Federal decisions. Upon this record, we are satisfied that the officers as peace officers, had the right, and it was their duty, to arrest the defendants while committing a crime (Comp. Laws, 1913, § 10,567) and to seize the instrumentalities which evidenced the commission of such crime. Surely, as peace officers, with the imposed duty to preserve the peace and the law, they could have properly arrested and seized such instrumentalities while such crime was being committed before their eyes on a highway. Their right to interrupt the performance of a crime and to apprehend the offenders and to seize the instrumentalities then being used to commit the crime is not to be denied because defendants happened to be operating within the confines of their own home. Whether the seizure was unreasonable is not at issue in this cause. The judgment should be affirmed.

BIRDZELL, Ch. J., and CHRISTIANSON, J., concur.

DISSENT BY: GRACE; ROBINSON

GRACE J. (dissenting).

This is an appeal by the defendants from a judgment given on a verdict, finding the defendants guilty of manufacturing intoxicating liquors. The information charging defendants with the commission of the crime is as follows, omitting formal parts: "F. E. McCurdy, state's attorney in and for said county of Burleigh and state of North Dakota, in the name and by the authority of the state of North Dakota, informs this court, that heretofore, to wit: On or about the 1st day of February, in the year of our Lord, one thousand nine hundred and twenty-one, at Bismarck at the county of Burleigh in the state of North Dakota, one J. W. Pauley and Pearlie Pauley late of the county of Burleigh and state aforesaid, did commit the crime of manufacturing intoxicating liquor committed in the manner following, to wit:

"That at the said time and place the said defendants did then and there wilfully and unlawfully make, ferment, and distill a liquid which was intoxicating for a beverage.

"This contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of North Dakota. Dated this 3d day of May, A. D. 1921."

After the filing of the information, the defendants were arraigned and requested to plead to the information. At this time no plea was entered. They instead demurred to the information on the ground that it appeared upon the face thereof that the facts there stated did not constitute a public offense. The demurrer was overruled and defendants entered a plea of not guilty. Thereafter the action was tried to the court and a jury and upon evidence introduced by the state, the defendants not introducing any evidence, but moving for a dismissal at the close of the state's testimony, the defendants were found guilty and thereafter sentenced to fine and imprisonment. The sentence of Pearlie Pauley being suspended. A motion for a new trial was made and denied. The defendants assign three errors.

(1) That the court erred in overruling defendant's demurrer to the information.

(2) That the court erred in admitting any evidence of the sheriff of Burleigh county, his deputies, the chief of police and other police of the city of Bismarck, in said county.

(3) That the court erred in certain of its instructions of the jury.

Considering the first assignment, it is claimed by appellants that under § 218 of our Constitution the manufacture and importation of intoxicating liquor, unless for sale or gift is not a crime under existing law at the time of the arrest and conviction. The laws in force at the time of the arrest and conviction were the fundamental law, § 217 of the Constitution and § 10,092, Comp. Laws, 1913. Section 217 provides: "No person, association, or corporation shall within this state, manufacture for sale or gift, any intoxicating liquors, and no person, association, or corporation shall import any of the same for sale or gift, or keep or sell or offer the same for sale, or gift, barter or trade as a beverage. The legislative assembly shall by law prescribe regulations for the enforcement of the provisions of this article, and shall thereby provide suitable penalties for the violation...