State v. Ware

Citation79 Or. 367,155 P. 364
PartiesSTATE v. WARE ET AL.
Decision Date29 February 1916
CourtOregon Supreme Court

In Banc.

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

On petition for rehearing. Petition denied.

For former opinion, see 154 P. 905.

G. E. Hamaker, of Portland, for appellant. George Mowry Deputy Dist. Atty., Walter H. Evans, Dist. Atty., and John A Collier, Deputy Dist. Atty., all of Portland, for the State.

BENSON J.

Counsel for defendant Ware in his petition for rehearing urges upon this court a further consideration of two contentions: (1) That the judgment of conviction should be reversed because of the fact that defendant's private papers were obtained by unlawful seizure and search, and that the trial court erred in denying his motion filed before trial for a return thereof; and (2) that the court erred in permitting certain cross-examination of the defendant.

Considering these in the order indicated we may say that the case of Weeks v. United States, 232 U.S. [79 Or. 378] 383 34 S.Ct. 341, 58 L.Ed. 652, L. R. A. 1915B, 834, Ann. Cas 1915C, 1177, is relied upon by counsel in support of his contention. A careful examination of this opinion discloses that the facts in that cause are decidedly different from those in the one at bar. In that case, the officers entered his house in his absence, and without a warrant of arrest. In the present instance, the papers were taken at the time of the arrest from the defendant's place of business. In addition, the circuit court subsequently made an order impounding the papers for use upon the trial, which it had a right to do. United States v. McHie (D. C.) 196 F. 586. We are unable to see that our former opinion is out of harmony with the overwhelming weight of authority. We do not wish, however, to be understood as commending the procedure of the district attorney's office, for, in our view, they were not justified in the reckless methods they pursued in obtaining evidence. If the dedendant suffered injury by the seizure of his papers, he had his remedy in some civil proceeding in the courts. However, as we have already indicated, the courts will not pause in the orderly trial of a criminal cause to inquire into the manner in which the evidence was secured. The private papers referred to are the property of the defendant, and, upon proper application to the clerk of this court, they will be returned to him.

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2 cases
  • Kelleher v. Minshull
    • United States
    • Washington Supreme Court
    • November 27, 1941
    ... ... by J. J. Kelleher, doing business as Credit Finance Company, ... against J. C. Minshull, as Supervisor of Banking of the State ... of Washington, and another, to test the constitutionality of ... the Small Loan Act. From an adverse judgment, plaintiff ... Oklahoma City, 1939, 184 ... Okl. 236, 87 P.2d 136 (both involving city ordinances) ... Oregon: State v. Ware, 1916, 79 Or. 367, 154 P. 905, ... rehearing denied, 1916, 79 Or. 377, ... [119 P.2d 305] 155 P. 364; Wrenn v. Portland Loan Co., 1937, ... ...
  • State v. Flores
    • United States
    • Oregon Court of Appeals
    • October 30, 1984
    ... ... The court first appeared to reject the exclusionary rule of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), in State v. Ware, 79 Or. 367, 154 P. 905, 155 P. 364 (1916). Then, in State v. Laundy, supra, it appeared to adopt the rule, albeit by dictum, stating that it did so for the same reasons which commended it to the federal Supreme Court, not because it was bound to follow the federal lead. As the court undoubtedly ... ...

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