98 So. 233 | Miss. | 1923
Lead Opinion
delivered the opinion of the court.
Appellant, Ned Owens, was indicted and convicted in the circuit court of Lamar county of possessing á still,
There was a search for and seizure of the still in this case, and made by an officer without a search warrant. He had a search warrant authorizing the.search of the premises of Lonny Williams. Instead, however, of searching the premises of Lonny Williams, the officer searched the premises of appellant, Ned Owens, and found the still in question. The search warrant authorizing the search of the premises of Lonny Williams was no authority whatever for searching the premises of appellant. We have a case simply where the search and seizure was without a search warrant, and the only evidence of guilt was obtained as the result of such unlawful search and seizure, and therefore, if Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377, and cases following that case are to stand, the trial court should have granted .appellant’s request for a directed verdict. The state, however, assails the soundness of that case, and urges the court to overrule it. It was held in that case, following the supreme court’ of the United States and the courts of several, although a minority, of the states, that evidence secured by the state against a defendant charged with crime in violation of the search and seizure section of our Contsitution could not be used against him, because to do so would violate, not only said section of the Constitution (section 23), but that clause of section 26 securing defendants charged with crime against self-incrimination.
The.judge who, wrote the opinion in the Tucker case may not have been justified in some of the reasons given for the holding of the court. Whether that be true or not, it was the purpose of the court in that case, and it was so explicitly stated in the opinion, to follow the decisions of the supreme court of the United States involving the same question, for the feasons given by that court.
After a most thorough reconsideration of the Tucker case, we decline to overrule it. We believe the rule laid
This question has in recent years been re-examined by the supreme court, and the principle laid down in the Boyd case reaffirmed in the following cases: Weeks v. U. S., 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652; L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lbr. Co. v. U. S., 251 U. S. 385, 40 Sup. Ct. 182, 64 L. Ed. 319; Gouled v. U. S., 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647; Amos v. U. S., 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. 654. And the view entertained by the supreme court of .the United States has been followed by the states of West Virginia, Kentucky, South Carolina, Iowa, Michigan, Indiana, Washington, and Tennessee in the following cases: State v. Wills, 91 W. Va. 659, 114 S. E. 261, 24 A. L. R. 1398; Youman v. Com., 189 Ky. 152, 224 S. W. 860, 13 A. L. R. 1303; Ash v. Com., 193 Ky. 452, 236 S. W. 1032; Blacksburg v. Beam, 104 S. C. 146, 88 S. E. 411, L.
We said iu the Tucker case that the federal supreme court was our greatest exponent of constitutional law. We add now these further observations, with reference to the greatness and independence of that court: Looking over its entire history, it can be truthfully said that it has been independent of party, power, and popularity. It has withstood for more than a century many storms of popular prejudice, some of which would have destroyed it had an opportunity been presented-. The calm judgment of the people, however, has always sustained its decisions. Of its independence, Warren, in his history of the supreme court of the United States, vol. 1, pp. 21-23, said:
“ Thus, judges appointed by Jefferson and Madison did not hesitate to join with Marshall in sustaining and developing the strongly nationalistic interpretation of the Constitution so obnoxious to Jefferson. Judges appointed by Jackson joined with Marshall and Story in supporting the Cherokee Missionaries against Georgia, in flat opposition to Jackson. The whole bench, appointed by Jackson, decided against his policy in relation to the Spanish land claims. Judges appointed by Jackson and Van Burén threw down the gauntlet to the former by issuing a mandamus against his favorite Postmaster General. In every case involving slavery, antislavery judges joined with pro slavery judges in rendering the decisions. The constitutionality of the obnoxious Fugitive Slave Law was unanimously upheld by antislavery Whig judges and by proslavery Democrats alike. A Northern Democrat joined with a Northern Whig judge in dissenting in the Dred Scott Case. President Lincoln’s legal tender
The supreme court of the United States held that the best and most effectual method of forcing the federal government to obey the search and seizure provision of the federal Constitution was to outlaw any and all evidence acquired against a defendant in violation of it. The majority of the state courts hold that the manner of acquiring evidence by the state is not to be inquired into; that the state, through its officials, will he permitted to trample under foot the constitutional guaranty against unreasonable searches and seizures, and use whatever evidence may be thus acquired against a defendant. Which is the better view?- It seems to ask the question is
The supreme court of the United States, in order to successfully enforce the searches and seizures provision of the Constitution, declared a rule,- which may be a new rule, but what of it. It had the right to do so. One of its main functions ,is to interpret and construe the federal Constitution, and in doing so it has more than once struck out boldly and declared principles theretofore unknown.
All the counts agree that a confession of guilt, obtained either through force, intimidation, or promise of reward, cannot be used against a defendant in a criminal case, and they also agree that judicial process cannot be had to com-' pel a defendant charged with a crime to produce in court the evidence of the crime. Under this rule the state can
It is argued that the Pringle Case (108 Miss. 802, 67 So. 455) and the Tucker case; are in conflict. There are two most important differences in the two cases. In the Pringle case the incriminating evidence was taken from, the defendant’s person while he was under arrest and in jail; and furthermore the court, in its opinion, states: “It does
It follows from these views that the trial court should have granted appellant’s requests for a directed verdict.
Reversed and remanded.
Concurrence Opinion
(specially concurring)'.
In this case, and others pending before the court in Banc, we are asked to overrule the case of Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377. I agree in the main with the reasoning in the Tucker case and with the authorities therein cited decided by the supreme court of the United States.
The decisions of the supreme court of the United States relied on in the Tucker case are Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746; Weeks v. U. S., 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Lumber Co. v. U. S., 251 U. S. 385, 40 Sup. Ct. 182, 64 L. Ed. 319; Gouled v. U. S., 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647; and Amos v. U. S., 255 U. S., 313; 41 Sup. Ct. 266, 65 L. Ed. 654. The material questions decided in these cases are that the state or federal officers have no right without a search warrant, under the Fourth and Fifth Amendments of the Constitution of the United States, to search the house or office of one, and to seize any property found therein; that any property found therein as a result of this unlawful search and seizure must be returned to the owner upon proper application therefor; that neither this property nor any
I do not think that the views announced in (the Tucker case are in conflict with the^opinion of this court in the Pringle case, reported in 108 Miss., 802, 67 So. 455. In the Pringle case, Pringle was under arrest when the papers were taken from his person. I think the distinction between the Pringle and Tucker cases and the case at bar is very well illustrated by the following quotation from the Weeks case, supra:
“It is not an assertion of the right on the part of the government, always recognized -under English and American law, to search the person of the accused when legally arrested, to discover and seize the fruits or evidences of crime. ' This right has been uniformly maintained in many cases” — citing authorities.
In all of these cases from the supreme court of the United States the officers seized property of the defendant. All of them except one were letters, papers, or documents of some kind. In the Amos case there was some liquor seized- Under the federal statutes liquor is still property.
While the law announced in the Tucker case in my opinion is correct, it was incorrectly applied to the state of facts. In that case and those following it the attention of the court was not addressed to the face that there is no such thing in this state as property in liquor. It is' contraband, and under our statutes It is the duty of the officers to destroy it wherever found. It is a crime to have in one’s possession in this state liquor. It is also a crime to have in one’s possession a still. A still
Nor these reasons I believe that the Tucker case was wrongly decided, that the law in that case was not correctly applied to the facts, and that for this reason it should be overruled.
Since a majority of the judges do not concur with me in this view, we are unable to overrule the Tucker case, and I conceive it my duty to follow it.
Dissenting Opinion
(Dissenting).
The evidence which the appellant sought to exclude in the court below is that two “acting” deputy sheriffs and a town marshal searched his home under a warrant which did not authorize a search thereof, and discovered therein and seized a still and about a half barrel of mash. The ground on which it is sought to exclude this evidence is that its admission would violate sections 23 and 26 of the state’s Constitution. Section 23 of this Constitution provides that:
“The people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; .and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized.”
The question here presented under this section of the Constitution is simply this: Is evidence, otherwise competent, rendered inadmissible because it was unlawfully obtained? or, to be more specific, Is evidence obtained by a public officer by means of an unlawful search and seizure admissible, when offered by the state on the trial of the person whose property was unlawfully searched and seized?
The right of the citizen to be sequre from unlawful searches and seizures was not created by this section of the Constitution, for that right was recognized and enforced at common law. Money v. Leach, 3 Burrows, 1742; Entick v. Carrington, 19 How. St. Tr. 103. The origin and purpose of the prohibition against unreasonable search and seizure, contained in the various state Constitutions, is the same as the origin and purpose of the prohibition thereof contained in the Fourth Amendment to the federal Constitution.
“The origin of this amendment runs back in English history to the seventeenth century, when Charles II was placed on the throne. It had become the practice in the office of the secretaries to the Crown, after the Restoration, to issue warrants for the arrest of persons without inserting their names in the warrants, especially
“While officers of the Crown were issuing and serving such warrants in England, they were doing the same in the American Colonies, and this contributed much to that public sentiment which eventually demanded the adoption of this amendment.” 2 Watson on the Constitution, pp. 1414, 1415.
See, also Cooley’s Constitutional Limitations (7 Ed.), p.- 426.
When this amendment was adopted, it had long been the rule at common law that evidence obtained by an unlawful search and seizure was admissible on the trial of the person whose.right of privacy had been invaded by the search and seizure. This was expressly decided on the Bishop of Atterbury’s trial in 1723. 16 How. St. Tr. pp. 490 to 498, inclusive, and is still the rule in England. At common law immunity from unreasonable search and seizure was enforced, not by excluding the evidence obtained thereby, but by subjecting the official who violated the right to a criminal prosecution or to a suit for damages. Had the immunity from unreasonable search and seizure not been included in the Constitution, the common-law immunity of the citizens therefrom would still have remained in force, in which event it could not have been said, in view of the English decisions, that evidence obtained by an unlawful search
In Pringle v. State, 108 Miss. 806, 67 So. 455, a letter written by Pringle, and which had been obtained by a constable by means of a search, which the court held to be unlawful, was admitted in evidence over Pringle’s objection in a case wherein he was charged with the crime of murder. The assignment of error, which the court in its opinion states that Pringle’s counsel mainly relied upon was the one complaining of the admission of this evidence. In deciding that question the court said:
“The leading case, State v. Turner, reported in 82 Kan. 787, 109 Pac. 654, 32 L. R. A. (N. S. ) 772, 136 Am. St. Rep. 129, and the notes thereto, go fully into a discussion of the principles involved in this assignment of error. Briefly stated, the rule is: Evidence against one accused of crime is not inadmissible because it has been wrongly obtained.
“It may have been wrong for the constable to have searched the prisoner; his conduct may have been reprehensible; but this will not affect the admissibility of the letter thus wrongfully obtained. ’ ’
In the notes to the ease to which the court referred (136 Am. St. Rep. 153), it is said: “That no rule of evidence is more firmly established than that which declares evidence to be admissible, if pertinent to the issue, although . obtained by an unreasonable, or an unwarranted, or an unlawful, search and seizure.”
In stating the case in Pringle v. State, supra, the court said: “It does not appear that appellant objected to the search of his clothing, but in our opinion it is immaterial whether he objected or not.”
It is clear from this that the court did not mean to decide that case on the theory that Pringle had consented
It is uniformly held by this court and all others, in so far as I am aware, that evidence obtained by a private individual by means of an unlawful search and seizure is not inadmissible because of'the manner in which it was obtained,, and I am unable to see why the rule should be different where an unlawful search and seizure was made by a public officer, for, when he exceeds his authority and commits a trespass, a public officer is on the same plane, in so far as the law is concerned, that a private citizen is.
In Williams v. State, 100 Ga. 511, 28 S. E. 624, 39 L. R. A. 269, it was very ‘accurately stated that:
“The main, if not the sole, purpose of our constitutional inhibitions against unreasonable searches. and seizures was to place a salutary restriction upon the powers of government; that is to say, we believe the framers of the Constitution of the United States and of this and other states merely sought to provide against any attempt, by legislation or otherwise, to authorize, justify, or declare lawful any unreasonable search or seizure. This wise restriction was intended to operate1 upon legislative bodies, so as to render ineffectual any effort to legalize by statute what the people expressly stipulated could in no event be made lawful; upon executives, so that no law violative of this constitutional inhibition should ever be enforced; and upon the judiciary, so as to render it the duty of the courts to denounce as unlawful every unreasonable search and seizure, whether confessedly without any color of authority, or sought to be justified under the guise of legislative sanction. For the misconduct of private persons, acting upon their individual responsibility and of their own volition,*782 surely none of the three divisions of government is responsible. If an official, or a mere petty agent of the state, exceeds or abuses the authority with which he is clothed, he is to be deemed as acting, not for the state, but for himself only; and therefore he alone, and not the state, should be held accountable for his acts. If the constitutional rights of a citizen are invaded by a mere individual, the most that any branch of government can do is to afford the citizen such redress as is possible, and bring the wrongdoer to account for his unlawful conduct. . . . Whether or not prohibiting the courts from receiving evidence of this character would have any practical and salutary effect in discouraging unreasonable searches and seizures, and thus tend towards the preservation of the citizen’s constitutional right to immunity therefrom, is a matter for legislative determination.”
Rules of evidence are not for the purpose of enforcing rights and duties but solely to enable the court to arrive in an orderly manner at the truth in a cause which it has under consideration. An invasion of private right is punished, not by rules of evidence, but by criminal prosecutions and suits for damages. But the competency of the evidence here under consideration may be rested on a narrower ground than the general rule that the manner in which evidence is obtained does not affect its competency.
Section 1, chapter 211, Laws of 1922, provides: ‘ ‘ That it shall be unlawful for any person, persons or corporations to own or control, or knowingly have in his, their or its possession any distillery commonly called a ‘still,’ or any integral part thereof.”
Section 5, chapter 189, Laws of 1918, provides: “That no property rights of any kind shall exist ... in any apparatus or appliance . . . which may be used for the purpose of' distilling or manufacturing any in
Section 1447, Code of 1906 (Hemingway’s Code, section 1204), provides:
“An officer or private person may arrest any person without warrant, for an indictable offense committed . . . in his presence. ’ ’
In so far as section 5, chapter 189, Laws of 1918, attempts to confer upon a sheriff or any other lawful officer, the right to search for appliances used in the manufacture of liquor without a warrant therefor, when a warrant is required by section 23 of the Constitution, it is void, but the mere possession by the appellant of the still here seized by the sheriff was unlawful, and a crime was therefore being committed by him in the sheriff/s presence, when the still was discovered by the sheriff, and consequently it became his duty then and there to seize the still and to arrest the appellant. And he was not relieved of the duty so to do, imposed on him by the statute; because of the fact that the commission of the crime came under his observation while he was making an unlawful search of the appellant’s premises. He may be subject to whatever punishment the law may impose for the trespass committed by him in making the search, but the seizure by him of the still was nevertheless lawful (Monette v. Toney, 119 Miss. 846, 81 So. 593 (5 A. L. R. 261) from which it necessarily follows that the evidence on which the seizure was made is competent (State v. Pauley [N. D.], 192 N. W. 91, State v. Krinski, 78 Vt. 162, 62 Atl. 37). Had he failed to make the seizure, he would have been subject to whatever punishment the law inflicts upon the sheriff for failing to discharge his statutory duties.
“The search for and seizure of stolen or forfeited goods, or goqds liable to duties and concealed to avoid the payment thereof, are totally different thing's from a search for and seizure of a man’s private books and papers for the purpose of obtaining information therein contained or of using them as evidence against him. The two things differ toto coelo. In the one case, the government is entitled to the possession of the property; in the other, it is not. The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of the revenue laws, or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past; and the like seizures have been authorized by our own Revenue Acts from the commencement of the government. The first statute passed by Congress to regulate the collection of duties (the Act of July 31, 1789, 1 Stat. 29, 43), contains provisions to this effect. As this act was passed by the same Congress which proposed for adoption the original Amendments to the Constitution, it is clear that the members of that body did not regard searches and seizures of this kind as ‘unreasonable,’ and they are not embraced within the prohibition of the*785 Amendment. So, also, the supervision authorized t,o be exercised by officers of the revenue over the manufacture or custody of excisable articles, and the entries thereof in books required by law to be kept for their .inspection are necessarily excepted out of the category of unreasonable, searches and seizures. So, also, the laws which provide for the search and seizure of articles and things, which it is unlawful for a person to have in his possession for the purpose of issue or disposition, such as counterfeit coin, lottery ticket's, implements of gambling, etc., are not within this category.”
In support of this statement of the law the court cited Commonwealth v. Dana, 2 Metc. 329, wherein, as here-inbefore stated, the supreme judicial court of Massachusetts decided that evidence was not rendered inadmissible because it was obtained by means of an unlawful search and seizure.'
This brings me to appellant’s contention that the admission of the evidence here in question would violate section 26 of the state’s Constitution, which provides that:
“In all criminal prosecutions the accused . . . shall not be compelled to give evidence against himself.”
Evidence can be given only by words and acts, so that the- prohibition is that a person shall not be compelled to say or do something that would tend to incriminate Mm. The compulsion must be strictly testimonial; that is, must be directed to a person in the capacity of a witness. In 4 Wigmore on Evidence (2d Ed.),'section, it is said that:
“Documents or chattels obtained from the person’s control without the use of process against him as a witness are not in the scope of the privilege and may be used evidentially; for obviously the proof of their identity, or authenticity, or other circumstances affecting them, may and must be made by the testimony of other*786 persons, without any employment of the accused’s oath or testimonial responsibility.”
See 4 Wigmore on Evidence (2d Ed.), section 2263; 5 Jones on Evidence, section 884; note to State v. Turner, 136 Am. St. Rep., at page 147.
From this it follows that a person cannot be 'compelled to himself produce in court incriminating documents and chattels to he used as evidence against him, but the protection extends no further.
A complete answer to the argument advanced in some of the cases for the exclusion of chattels and documents unlawfully seized, when offered in evidence against the person from whom they were taken, that, when a person’s property speaks, he himself speaks, and therefore to introduce in evidence his property or facts relative thereto, obtained by means of its unlawful seizure, is tantamount to compelling him to testify in person, is contained in the opinion of the supreme court of New Hampshire in State v. Flynn, 36 N. H. 64 wherein it was said:
“The objection made in this case does not go so far as to insist that all evidence obtained under a search warrant is incompetent. Its ground is, rather, that, information obtained by means of a search warrant, in a case not authorized by the Constitution, is not competent to be given in evidence, because it has been obtained- by compulsion from the defendant himself, in violation of that clause of the Constitution which provides that no person shall be compelled to furnish evidence against himself. . . .
“It seems to us an unfounded idea that the discoveries made by the officers and their assistants, in the execu-.. tion of process, whether legal or illegal, or where they intrude upon a man’s privacy without any legal warrant, are of the nature of admissions made under duress, or that it is evidence furnished by the party himself upon*787 compulsion. The information thus acquired is not the admission of the party, nor evidence given by him, in any sense. The party has in his power certain mute witnesses, as they- may he called, which he endeavors, to kqep out of sight, so that they may not disclose the facts which he is desirous to conceal. By force hr fraud access is gained to them, and they are examined, to see what evidence they bear. That evidence is theirs, not their owners. If a party should have the power to keep ont of sight, or out of reach, persons who can give evidence of facts he desires to suppress, ■ and he attempts to do that, but is defeated by force or cunning, the testimony given by such witness is not his testimony, nor evidence which he has been compelled to furnish against himself. It is their own. It does not seem to us possible to establish a sound distinction between that case, and the case of the counterfeit bills, the forger’s implements, the false keys, or the like, which have been obtained by similar means. The evidence is in no sense-his.”
The same conclusion was reached by this court in Magee v. State, 92 Miss. 865, 46 So. 529. In order to determine whether Magee was the. person, who committed the crime with which he was charged, he was compelled to place his bare foot in a track made by the bare foot of the perpetrator of the crime and testimony to the effect that his foot fitted the track was Held to be competent when offered on Magee’s trial, the court stating:
“There has been great confusion in some courts on this subject; but we do not see how it is possible, logically, to sustain an objection to compelling the defendant simply to put his foot in a track for the purpose of identification, on the ground -that he was privileged, by the constitutional provisions referred to, against being compelled to testify or to give evidence against himself. He is not, in such cases, giving evidence. He is not testifying as a witness. He is not delivering any testimonial utterance.”
Evidence obtained by means of a lawful search warrant is admissible under all of the authorities, including the courts which hold that evidence obtained by an unlawful search is inadmissible, though the reason for the exclusion of such evidence undek section 26 of the Constitution, when obtained by an unlawful search, applies with equal force to evidence obtained by a lawful search. In each case the evidence is obtained without the consent of the person whose premises were searched, and, if in the one case he speaks when his property speaks, he must so speak also in the other. The distinction is arbitrary and is without foundation in either the Constitution or the common law, and, if the evidence does not violate the rule against self-incrimination in one case, it does not in the other.
The foregoing views are fully supported by the following cases, decided since the supreme court of the United States decided the Amos and Gouled cases relied on and followed in the Tucker case: State v. Chuchola (Del. Gen. Sess.), 120 Atl. 212; Commonwealth v. Wilkins, 243, Mass. 356, 138 N. E. 11; State v. Simmons, 183 N. C. 684, 110 S. E. 591; Sioux Falls v. Walser, 45 S. D. 417, 187 N. W. 821; State v. Hesse (Minn.), 191 N. W. 267; Venable v. State, 156 Ark. 564, 246 S. W. 860; State v. Myers, 36 Idaho, 396, 211 Pac. 440; People v. Mayen, 188 Cal. 237, 205 Pac. 435, 24 A. L. R. 1383; Banks v. State, 207 Ala. 179, 93 South. 293, 24 A. L. R. 1359; Kennemer v. State, 154 Ga. 139, 113 S. E. 551.
The case of Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377, was erroneously decided, is in conflict with Pringle v. State, 108 Miss. 802, 67 So. 455, and Magee v. State, 92 Miss. 865, 46 So. 529, is mischievous in its results, and should be overruled. Until it is overruled, however, it is binding on this court and the trial courts.
