State v. Prescott

• Decision Date: 26 May 1923
• Docket Number: 11240.
• Parties: STATE v. PRESCOTT ET AL.
• Court: South Carolina Supreme Court

117 S.E. 637

125 S.C. 22

STATE v. PRESCOTT ET AL.

No. 11240.

Supreme Court of South Carolina

May 26, 1923

Appeal from General Sessions Circuit Court of Richland County; W. H Townsend, Judge.

George Prescott and another were convicted of a violation of the prohibition law, and they appeal. Affirmed.

Watts and Cothran, JJ., and Memminger, Wilson, and De Vore, Circuit Judges, dissenting.

C. T Graydon and C. N. Sapp, both of Columbia, for appellants.

A. F Spigner, Sol., of Columbia, for the State.

FRASER J.

The record shows:

"This case was commenced by the finding of an indictment against George Prescott and Dave Murphy and Emma Meetze for violation of the prohibition law, and was tried in Richland county on May 24, 1922, and resulted in a verdict of guilty as to the defendant Prescott and the defendant Murphy. After the jury was impaneled and sworn, and before the taking of any testimony in the case, the solicitor in open court nol. prossed the case against Emma Meetze."

Evidence.

"The evidence in the case consisted of the testimony of Emma Meetze, who swore that Prescott, the defendant, had rented a room in her house and had therein stored the whisky in question. She testified that the room was rented by Murphy but for Prescott, and that when the officers came in Prescott was drawing the whisky out of a keg and stopping it up in quart jars. That the house in which the whisky was stored was her house, and was a dwelling house in which she lived."

"The defendant Prescott said he wanted the room to store some things in. I rented to him and gave him the key. I did not see him store the whisky in the room, because I was not at home. I did not know that there was any whisky there, until the officers raided the house."

" The witness T. A. Berley, a witness for the state, testified that he was an officer of the law and went to the home of Emma Meetze, a dwelling house, between 12 and 1 o'clock at night, on April 22, 1922, and made therein a search under a warrant."

The testimony was objected to on three grounds, to wit:

The search warrant was insufficient, the house searched was a dwelling house, and the search was in the night, all in violation of the law.

The recent case of State v. Green (S. C.) 114 S.E. 317, shows that the point cannot be sustained. That case holds:

"It may be mentioned in this place that, though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question."

That is the law of this state and a republication of statements of that case would be unprofitable.

Affirmed.

GARY, C.J., concurs.

MARION, J.

I concur under the authority of State v. Green, which I think was correctly decided. Unlawful seizures and searches by officers of the law are not to be approved or encouraged by the courts; but the remedy for official misconduct in that regard does not lie in saying that what is in fact evidence is not evidence, but in the pursuit by the injured party of such remedies as are now provided by law or as should be provided by the lawmaking power.

SEASE, FEATHERSTONE, RICE, BOWMAN, HENRY, DENNIS, and JOHNSON, Circuit Judges, concur in opinion of FRASER, J.

WATTS, J. (dissenting).

The defendant was convicted and sentenced for violation of the prohibition law at Richland County, on May 24, 1922, and by six exceptions alleges error.

The first question complains that the warrant was illegal on its face, having failed to state the sources of information and the grounds of belief. Section 836, Criminal Code 1912: Affidavits may be on information and belief whenever in this chapter it is provided that process shall issue upon an affidavit based on information and belief, the affidavit shall contain a statement setting forth the sources of information, the facts and grounds of belief. Provided that it shall not be necessary to set forth the sources of information, the facts and grounds of belief in the affidavit upon which a warrant of arrest shall issue, but it shall be only necessary in cases of search warrant.

The exceptions raising this question should be sustained as the warrant is fatally defective, and, further, the officers had no right to search a dwelling house in the nighttime. Section 830, Criminal Code 1912, says, "provided that no dwelling house shall be searched in the nighttime." The warrant was served by a constable who swore out the warrant and expressly violated sections 44 and 45 of the Criminal Code of 1912.

All laws ought to be enforced, but in enforcing the same the officers charged with the enforcement ought to be careful not to violate the laws of the land, and be themselves guilty of an infraction of the law while attempting to enforce the law.

The prohibition law should be enforced the same as any other law, but the officers charged with the enforcement have no rights higher than the enforcement of other laws. The same rules of enforcement must govern them.

We are aware that in the enforcement of the prohibition law they meet with many obstacles and difficulties, yet they should be governed by the same rules of enforcement. It is a fact that will not be seriously questioned that in Richland county, under the dispensary law, one dispensary probably sold more liquor in one month than all of the blind tigers in Richland county sold in twelve months. The law can be enforced and illegal sales of liquors suppressed under the same rules or regulations, and the same laws as employed in the suppression of all other violations of law, and it will not do to allow officers, in their zeal to enforce law, to violate, however innocently, the wise statutes that protect the citizens.

There was no evidence in this case to convict the appellant, except as to that which was illegally obtained, and under the cases of Blacksburg v. Beam, 104 S.C. 147, 88 S.E. 441, L. R. A. 1916E, 714; State v. Zaglin, 114 S.C. 265, 103 S.E. 510; State v. Wagstaff, 115 S.C. 198, 105 S.E. 283.

I think the exceptions should be sustained and judgment reversed.

MEMMINGER and WILSON, Circuit Judges, concur.

COTHRAN J. (dissenting).

I concur in the dissenting opinion of Mr. Justice WATTS and wish to add a few observations of my own in support of his conclusions.

I think that the constitutional guaranty of immunity from unreasonable searches and seizures conferred by article 1, § 16, of our Constitution--"the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated"--extends not only to the fact of search and seizure, but to every incident of such unlawful act. To hold that the citizen shall enjoy such immunity, and yet when it is flagrantly violated his person shall be subjected to punishment and his property confiscated, upon the strength of evidence thus unlawfully obtained, is but to "keep the promise to the ear and break it to the hope."

It seems to me that the very words of the Constitution render it impossible to offer in evidence "papers or effects" thus unlawfully obtained. Can it be said that his "person" was rendered secure from such search while the evidence thus obtained is used to place that "person" behind the bars or made to crack rock on the public highways? Can it be said that his "papers or effects" were rendered secure when they are abstracted from his possession and used as evidence against him?

It is contended that whatever may be evidence is evidence however obtained, and that the defendant's remedy is an action for damages against the trespasser or a criminal prosecution against him whenever the Legislature sees fit to make such trespass a crime. I do not think that this meets the question of the defendant's rights under the Constitution. They are that his person, house, papers, and effects shall be secure from unreasonable search; that security should extend to every incident of such search; otherwise the immunity is but a mockery.

The state is the fountain of law and justice. It is the last one to condone or seek to obtain an advantage by the infraction of the law. It is beneath the dignity of the state to juggle with the constitutional rights of a citizen and by refined reasoning to employ tainted evidence to convict him. As the Supreme Court of the United States has said in the Silverthorn Case, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319:

"If knowledge of them is gained from an independent source, they may be proved like any others; but the knowledge gained by the government's own wrong cannot be used by it in the way proposed."

The state cannot afford to be the receiver of stolen goods.

I think it is against public policy to admit such evidence. Once lay down the law that, however unlawful the search may have been, the fruits of that search are admissible evidence, those engaged in the enforcement of a particular law, who themselves should be the strongest advocates of respect for the law, will trample it under their feet in eagerness to reach their quarry; houses will be entered at night, citizens will be held up on the street, automobiles carrying women will be shot into on the highways, in defiance of the law and with supreme indifference for their personal accountability. If such a holding induces such conduct, the law should remove the inducing cause.

It is bound to lead to bloodshed. If the officers persist in an admittedly unlawful procedure, they may expect justifiable resistance, and it is a question which side of the...