State v. Sutter.
| Decision Date | 26 November 1912 |
| Citation | 71 W.Va. 371 |
| Court | West Virginia Supreme Court |
| Parties | State v. Sutter. |
1. Criminal Law Evidence Competency Evidence Illegally Obtained,
It is not ground for excluding as evidence a bottle of cocaine or other articles of incriminating evidence, even though forcibly taken from the accused or by putting him in fear, or that it was obtained by illegal search of the person and seizure., (p. 372).
2. Arrest Authority to Arrest Necessity for Warrant.
Either an officer of the peace or a private individual seeing a felony committed may lawfully arrest the felon without waiting for a warrant of arrest. (p. 373).
3. Criminal Law Trial Conduct in General Presence of Accused.
Upon a trial for felony, after close of the evidence, the judge and the attorneys for both sides go into another room, leaving the accused and jury in the court room, and in that other room a motion to strike out the evidence of a state witness is made by the accused, and argued, and decided against the accused. On discovery of the absence of the accused, he is sent for, and the judge offers to allow him to again make such motion, and argue it, but the accused declines to do so. Such absence of the prisoner demands a new trial, (p. 373).
Error to Circuit Court, Pocahontas County.
H. Clare Sutter was convicted of keeping in his possession cocaine with intent to sell the same, and brings error.
Reversed, and New Trial Granted.
N. C. McNeil and P. T. Ward, for plaintiff in error.
William G. Conley, Attorney General, for the State.
Brannon, President:
An indictment against Clare Sutter contained two counts, the first charging the unlawful sale of cocaine, the other the keeping in his possession cocaine with intent to sell it. He was tried on the second count, found guilty by a jury, and sentenced to the penitentiary for five years.
We think the motion to quash the second count was properly overruled. It is based on section 2 of chapter 16, Acts of 1911. The count charges that Sutter "did unlawfully and feloniously have in his possession cocaine and mixtures containing cocaine, with intent then and there to sell, give away and dispense the same, the said Clare Sutter not being then and there a licensed manufacturing pharmacist or chemist, or a wholesale or retail druggist, nor a licensed physician, dentist or veterinary surgeon/' The motion suggested that the second count "fails to negative various methods under the statute under which the defendant might have cocaine in his possession legally." The count negatives the exceptions contained in the enacting clause. That conforms to the rule. The further provisions saying that the possession of cocaine, except under certain circumstances, shall be evidence of intent to sell, are not in the enacting clause, but relate to evidence on the trial. The latter exceptions need not be negatived in the indictment.
A state witness, a constable, having a warrant for arrest of John Doe and Richard Boe, suspecting the sale of cocaine, had a party to apply to Sutter and Murray to purchase it, and the parties went to a room, and the constable watched, and seeing Sutter in the act of sale rushed into the room with a pistol, commanded Sutter to "throw up his hands," searched him, and found on his person three bottles of cocaine, one of which was given in evidence to the jury. The admission of this evidence is pointed out as error. It is said that it was obtained by unlawful search of the person and by force or threat of shooting. Wharton's Crim. Evidence, (10th ed.), sec. 518, reads: "It is not ground for exclusion of an article of demonstrative evidence that it was taken from the possession of the accused, even though it was forcibly taken from him, or that it was obtained by illegal search and seizure." See Shield v. State, 53 Am. St. B. 17. "Courts do not pause to open up a collateral issue in a trial upon the question whether a wrong has been committed in obtaining information possessed by a witness." Cluett v. Rosenthal 43 Am. St. E. 872. "Though papers and other subjects or 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 pertinent. The court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question. This principle is regularly applied to incriminating materials tools, liquor, documents, etc. obtained by unlawful search of premises, or unlawful search of the person, or by other unauthorized means/' 1 Greenleaf Ev., sec. 254a. That great work, Wigmore on Ev., vol. 3, sec. 2264, ably discusses and sustains this principle. But why go from home, when we have State v. Edwards, 51 W. Va. 220', holding it?
It is argued that the arrest of Sutter was illegal, there being no warrant for him, the warrant being for fictitious persons. The officer saw the offence committed. Is it necessary to discuss this...
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