State v. Young

• Decision Date: 07 October 1929
• Docket Number: 1558
• Citation: 281 P. 17,40 Wyo. 508
• Parties: STATE OF WYOMING v. ROY YOUNG [*]
• Court: Wyoming Supreme Court

281 P. 17

40 Wyo. 508

STATE OF WYOMING v. ROY YOUNG ^[*]

No. 1558

Supreme Court of Wyoming

October 7, 1929

APPEAL from the District Court, Sheridan County; JAMES H. BURGESS Judge.

Roy Young was convicted of the offense of transporting intoxicating liquor and appeals.

Affirmed.

For the appellant there was a brief and oral argument by H. Glen Kinsley of Sheridan, Wyoming.

The court erred in denying defendant's motion for suppression of evidence obtained in a search without warrant.Defendant was arrested upon a charge of larceny of a log chain for which the officers were searching; the arrest on the petty larceny charge was in itself illegal; there was no evidence introduced showing a petty larceny had been committed.The officers were without authority to arrest without a warrant.5 C. J. 405;Edgin v. Tally, (Ark.)276 S.W. 591; 42 A. L. R. 1194.The seizure of the evidence objected to was under the rule unlawful, and it should have been suppressed.State v. George,22 Wyo. 223, 231 P. 683;Whitford v. State, (Okla.)247 P. 424;Hughes v State, (Tenn.)238 S.W. 588;Pickett v. State, (Ga.)25 S.W. 608;Youman v. Com., (Ky.)224 S.W. 860, and see note in 13 A. L. R. 1303 at 1309;Allen v. State, (Wis.)197 N.W. 808;Tobin v. State, (Wyo.)255 P. 789;Soards v. State, (Okla. )259 P. 157.Plaintiff's exhibits "A,""B,""C" were improperly received in evidence.State v. Kelley, (Wyo.)258 P. 571;Carroll v. U.S.267 U.S. 232;Hoyer v. State, (Wis.)193 N.W. 89;State v. One Hudson Auto,190 N.Y.S. 481;State v. Biggons, (Wash.)203 P. 390; See Collection of cases in note to 27 A. L. R. 673;39 A. L. R. 829;41 A. L. R. 1539;51 A. L. R. 431; Cornelius on Search and Seizure, 62.A defendant charged with violations of a criminal statute is entitled to a fair and impartial trial by a jury whose minds have not been turned against them by a load of incompetent, inadmissible and prejudicial evidence.If the incompetent evidence in this case is excluded, there will remain no evidence to sustain the verdict or judgment of the trial court.It is therefore contended that the court erred in entering judgment against the defendant.Wiggin v. State,28 Wyo. 480;State v. George,32 Wyo. 233;State v. Crump,35 Wyo. 41;State v. Rotolo, (Wyo.)270 P. 665.The judgment of the trial court should be set aside.

On behalf of the state there was a brief by William O. Wilson, Attorney General; Richard J. Jackson, Assistant Attorney General, and oral argument by Mr. Jackson.

Defendant Young admitted to the officers that the car contained whiskey and told them to go ahead and search it.The search and seizure was proper as an incident to the lawful arrest of defendant.Wiggin v. State,28 Wyo. 480;State v. George,32 Wyo. 223;State v. Rotolo,270 P. 665, (Wyo.);Agnello v. U.S.269 U.S. 20;Merron v. U.S.275 U.S. 198.As incident to a lawful arrest, the state may seize and use in evidence any evidence of crime that may be discovered.Carroll v. U.S.267 U.S. 132;Weeks v. U.S.232 U.S. 383;State v. Turner,302 Mo. 660, 259 S.W. 427;State v. McDaniel,237 P. 373, (Ore.);Coffelt v. State,254 P. 760, (Okla.).The arrest of defendant was lawful.Sec. 7350, W. C. S. 1920.The evidence shows a petty larceny.Johnson v. State,47 Ala. 62;Price v. State,95 So. 55, (Ala.);36 C. J. 879.Knowledge communicated by telephone to officer is sufficient basis for arrest without warrant.State v. Kelly, et al.,268 P. 571, (Wyo.).The voluntary statements made by defendant after his arrest constituted probable cause and furnished a basis for the search and seizure.People v. Chyc,219 Mich. 273, 189 N.W. 70;Smith v. Commonwealth,197 Ky. 192, 246 S.W. 449;Maldonado v. U.S. (C. C. A.)284 F. 853;U. S. v. Williams,295 F. 219;Frix v. State,148 Tenn. 478, 256 S.W. 449;Boswell v. State, 26 Okla. Cr. 116, 222 P. 707;Foley v. Utterback, 196 Ia. 956, 195 N.W. 721.The statements of defendant disclose a voluntary consent and desire to invite search.Tobin v. State,36 Wyo. 368;State v. Bonolo,270 P. 1065, (Wyo.);Strand v. State,252 P. 1030.Officers may search and seize liquor in an automobile where their senses detect it.State v. Kelly,268 P. 571, (Wyo.);Bell v. U.S.285 F. 145, certiorari denied, 262 U.S. 744;Boyd v. U.S.286 F. 930;U. S. v. Rembert,284 F. 996;Ferrell v. Com.,204 Ky. 548, 264 S.W. 1078;La Fazia v. U.S.4 F.2d 817;People v. Case,220 Mich. 379, 190 N.W. 289;State v. Quinn, 111 S. Car. 174, 97 S.E. 62.Probable cause is a mixed question of law and fact.5 C. J. 419.The right to search and seize as incident to a lawful arrest has always been maintained.The courts of this state have recognized this rule.Wiggin v. State,28 Wyo. 480, 1c Chap. 491;State v. George,32 Wyo. 223, 1c Chap. 245;State v. Rotolo,270 P. 665;Agnello v. U.S.269 U.S. 20;Marron v. U.S.275 U.S. 198.And the fact that defendant was arrested for the theft of a log chain does not affect the right of the state to seize as incident to a lawful arrest therefor, any evidence of crime that may be discovered.Carroll v. U.S.267 U.S. 132, 1c Chap. 158;Weeks v. U.S.232 U.S. 383, 1c Chap. 392;State v. Turner,302 Mo. 660, 259 S.W. 427;State v. McDaniel,237 P. 373(Ore.);Coffelt v. State,254 P. 760, (Okla.).Therefore the defendants arrest for the theft of the log chain being lawful, then the subsequent search of the automobile and seizure of its contents was proper.Section 7350, W. C. S. 1920, provides as follows: "Any person not an officer, may without warrant arrest any person if a petit larceny or felony has been committed, and there is reasonable ground to believe the person arrested guilty of such offense, and may detain him until a legal warrant can be obtained."We believe that the evidence shows that a petit larceny had been committed as the disappearance of the log chain was shown, together with evidence negativing the loss of the chain.This evidence is sufficient to show a larceny of the chain.Johnson v. State,47 Ala. 62;Price v. State, (Ala.)95 So. 55, 36 C. J. 879.The defendant and his companion were in the vicinity of the place where the chain disappeared, and had an opportunity to commit the crime.Their car was the only one along the road that morning, and this fact constituted the basis for a reasonable ground for belief, that they had taken the chain.It has been recently held by this court that knowledge communicated to the officer by telephone is a sufficient basis for an arrest, by the officers, without a warrant.State v. Kelly, et al.,268 P. 571.In the Kelly case, as in this, the offense was a misdemeanor, and the arrest was warranted by statute.It would be absurd to say, that a private person had power to arrest in a case under the statute, where a petit larceny had been committed, and that he could not communicate with an officer and have the officer arrest.We believe, therefore, that the search and seizure of the liquor found in defendants car was justified as being an incident to the lawful arrest of defendant.The defendant, after his arrival in Sheridan, advised the officers that the car was loaded with whiskey, and for them to go ahead and search it without a warrant.(R. p. 71;R. 1. 100.)This statement was voluntarily made and not made under coercion, threats, or promises of immunity.(R. p. 101.)The statement so made constituted probable cause and authorized the search of the car and seizure of the liquor.People v. Chyc.,219 Mich. 273, 189 N.W. 70;Smith v. Commonwealth,197 Ky. 192, 246 S.W. 449;Maldonado v. U.S. (C. C. A.)284 F. 853;U. S. v. Williams,295 F. 219;Frix v. State,148 Tenn. 478, 256 S.W. 449;Boswell v. State, 26 Okla. Cr. 116, 222 P. 707;Foley v. Utterback, 196 Ia. 956, 195 N.W. 721.In People v. Chyc., cited above, defendant was arrested without a warrant by an officer for being intoxicated.The officer suspecting that the automobile standing nearby contained intoxicating liquor, asked defendant what he had in the car.Defendant replied, "If you want to know, look."It was held in that case that the search, resulting in the discovery of liquor in the car, was valid.The testimony is clear from two witnesses in this case as to the statement made by defendant to the officers with reference to the contents of the car and for them to go ahead and search the car.Defendant made no attempt to dispute this evidence.This language disclosed clearly a voluntary consent and desire to invite search.We do not see how it could be construed otherwise.Tobin v. State,31 Wyo. 368;State v. Bonolo,270 P. 1065;Strand v. State,252 P. 1030.We submit that the evidence objected to was rightfully introduced in evidence, having been lawfully obtained upon defendants express voluntary consent.

H. Glen Kinsley in reply.

A search made pursuant to an admission gained unlawfully is illegal.Wiggins v. State,28 Wyo. 480;State v. McDaniel, (Ore.)237 P. 376;Coffelt v. State, (Okla.)254 P. 760.The automobile was seized with its contents several miles north of Sheridan, unlawfully and without warrant, on suspicion that the owners of the car had stolen a log chain.The case is almost identical with State v. Gibbon, (Wash.)203 P. 390, where it was held that the arrest and seizure was unlawful.There was no voluntary consent to a seizure nor invitation to search.Tobin v. State,36 Wyo. 368.The federal cases cited by the attorney general are dissimilar to the facts and cannot be fairly considered as authorities upon the questions presented on this appeal.

RINER, Justice.BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

Roy Young was convicted in the District Court of Sheridan County of transporting intoxicating liquor in violation of law.From a judgment of fine and imprisonment, entered upon...