State v. Rowley

• Decision Date: 07 March 1922
• Docket Number: No. 34294.,34294.
• Citation: 187 N.W. 7
• Parties: STATE v. ROWLEY.
• Court: Iowa Supreme Court

187 N.W. 7

STATE

v.ROWLEY.

No. 34294.^a1

Supreme Court of Iowa.

March 7, 1922.

Appeal from District Court, Polk County; Hubert Utterback, Judge.

The defendant appeals from a conviction of attempt to produce a miscarriage. Reversed.Herman F. Zeuch, Ladd, Warren & Ladd, and Theo. F. Mantz, all of Des Moines, for appellant.

Ben J. Gibson, Atty. Gen., for the State.

PRESTON, J.

[1][2] The defendant is not a licensed physician and surgeon. She is or has been a nurse. Her husband is a mail carrier, and was not at home at the time the sheriff arrested the defendant and searched the home, seized and removed certain instruments, catheters, speculum, etc. Such instruments were later, upon the trial of the case, admitted in evidence over defendant's objection. The search and seizure by the sheriff was without a search warrant, and the search for and the seizure of such instruments was in the absence of the defendant, after she had been arrested, and had been taken to jail by a sheriff's deputy. The sheriff, however, did have a warrant for the arrest of the defendant, and under the warrant he would have authority to enter the premises for the purpose of making the arrest. Code, § 5201. He had no right to search the premises and seize property under such a warrant. To do so would be unauthorized and an abuse of process. After defendant had been taken to jail, one of her sons, at the demand of the sheriff, furnished certain keys which the sheriff used in searching different parts of the premises. Defendant's husband testifies that he is the head of the family, and that he did not consent to such search and seizure. The defendant also so testifies. On the contrary, the testimony of the defendant and the sheriff, taken as a whole, shows that though perhaps defendant did not know her constitutional rights, she objected and protested against the sheriff making a search before she was taken to jail, and, as said, she was not present at all when the search was made and the seizure made of the instruments. This being so, there was no consent or waiver. The sheriff did not at first explain to defendant the purpose for which he desired admittance to the house, as the statute before cited seems to require. He went to the house with a woman deputy sheriff, and defendant was at first informed that the sheriff was “the young man in the case.” This statement was stricken from the evidence, but went in later. He afterwards informed defendant who he was and the purpose of his visit. The sheriff at first testified:

“Q. Before Mrs. Rowley left the house, and after you had informed her as to who you were and what you were out there for, did you say anything to her with reference to searching the house? A. I can't remember the exact conversation. I spoke to her about searching the place.

Q. What did she say when you mentioned that subject, if anything? A. I can't remember the words she said. She said I wouldn't find anything. When I started to look through the library table, she said it wasn't necessary for me to look around through those letters. I told her I always did that whenever I was out making an arrest, and things were there that were liable to lead to some of the facts. She objected and said she wished I wouldn't do so.”

Later in his examination, and on cross-examination, he attempts to strengthen his testimony by saying:

“If I remember the exact words, she said, ‘Go to it; you won't find anything here.’ ”

After defendant had been taken away and defendant's boy came, the search was continued. In addition to the instruments, two towels and two of defendant's letters were taken away. The defendant, by objection to the evidence, by motion for a directed verdict, by motion for new trial, and by an application to the court to return such instruments, and perhaps in other ways, properly raised the question as to the alleged violation of defendant's constitutional rights under the Fourth and Fifth Amendments to the Constitution of the United States, and section 8, art. 1, of the Constitution of Iowa, and section 5484 of the Code. The state cites State v. Van Tassell, 103 Iowa, 6, 72 N. W. 497, and cases from other jurisdictions to sustain its proposition that the instruments were properly admitted in evidence. In the Van Tassell Case the claim was that defendantwas compelled to give evidence against himself, and it distinguishes Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746.

[3] Under some circumstances and for certain purposes, the sheriff, upon making an arrest, may search the person of a defendant. This is where money or property may be taken from him which is in any way connected with the crime charged, or which may serve as identifying the prisoner, or which may be used by him in effecting an escape. Commercial Bank v. McLeod, 65 Iowa, 665, 19 N. W. 329, 22 N. W. 919, 54 Am. Rep. 36;State v. Lyon, 176 Iowa, 171, 176, 157 N. W. 742;State v. Browman (Iowa) 182 N. W. 823, 832. But under the evidence before set out and under the authorities to be cited in a moment that is not the question presented in this case.

[4] The state also contends that articles found in a room occupied by a defendant are admissible in evidence, although taken possession of without warrant, or even by trespass. But, as pointed out in State v. Sheridan, 121 Iowa, 164, 168, 96 N. W. 730, most of the cases so holding are where the incriminating evidence has been discovered by persons acting without color of authority, etc. Under such circumstances, some of the cases hold that the remedy is an action for damages. We think the question in the instant case is ruled by the principles announced in State v. Height, 117 Iowa, 650, 91 N. W. 935, 59 L. R. A. 437, 94 Am. St. Rep. 323, where the question is fully discussed. See, also, State v. Sheridan, 121 Iowa, 164, 167, 96 N. W. 730;Boyd v. United States, 116 U. S. 616-629, 6 Sup. Ct. 524, 29 L. Ed. 746;Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177;Amos v. United States, 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. 654; Constitution of Iowa, art. 1, § 8, which reads:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizures and searches, shall not be violated; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons and things to be seized”

--also Constitution of the United States, supra.

[5] The purpose of these provisions is the security which they afford to all citizens against the zeal of prosecuting officers. The impression seems to prevail in some quarters that in times of stress--in war--public clamor for the punishment of a supposed notorious criminal, in violation of constitutional provisions, is justified. We have no doubt, however, that, when so tempted, constitutional restraints should be all the more firmly binding. There is much more involved than the result of this or any other particular case.

[6] 2. It seems to be proper practice, and sustained by precedent, that when property is so unlawfully seized, to restore it, upon proper showing. Weeks v. United States, supra; Amos v. United States, supra; Gouled v. United States, 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647;Adams v. New York, 192 U. S. 585. We do not find that the precise question has been presented to this court, but in State v. Sheridan, supra, at page 167 of 121 Iowa, at page 731 of 96 N. W., we find this language:

“In such cases parties will be restored to the rights and positions they possessed before they were deprived thereof by the fraud, violence, or abuse of legal process.”

[7] 3. We think the instruments were erroneously admitted in evidence for another reason. The jury may have surmised that the instruments were or could be used for the purpose of producing an abortion. It may be so, but there is no evidence in the record to show that fact. Under the circumstances of this case, the admission of the instruments in evidence under such circumstances was very likely to be prejudicial. Dr. Brinkman, a witness for the state, testified that the catheters are used by physicians and surgeons to insert into the bladder of a male or female to draw urine when a person cannot urinate; the forceps, to reach into a cavity to swab out things; the sound or probe, to probe a wound or sound it out--to put into the bladder and see if you can strike a stone; the speculum, to insert into the rectum, or to look into the vagina to see the mouth of the womb. The doctor testifies that he does not know whether such instruments are or not used to produce abortion. The defendant testifies that some of the female members of her family or relatives had been operated upon for kidney or bladder troubles, and that she used the catheters to draw urine, the speculum to pack the vagina to stop hemorrhage, etc.

4. Error is assigned because, over objection, the court admitted evidence showing that defendant had committed abortions on other women, and as to declarations of the defendant that she was engaged in that business. The evidence was admitted on the theory, as indicated by the court's instructions, that it was to be considered by the jury only for the purpose of aiding in determining the intent and motive of the defendant in attempting to produce such miscarriage on the prosecuting witness, if the jury should find that defendant did in fact attempt so to do. The defendant denies that she attempted to commit an abortion on the prosecuting witness, but admits that at the time stated when the state claims an instrument was used she made a digital examination and claims to have found evidence of a “dirty disease,” as she puts it, and advised the prosecuting witness to cleanse herself, and so on. It is not claimed that there was any...