ROHLFING v. STATE OF INDIANA.
No. 28,806
Supreme Court of Indiana
December 5, 1951
Rehearing denied January 15, 1952.
230 Ind. 236 | 102 N.E.2d 761
NOTE.—Reported in 102 N. E. 2d 761.
J. Emmett McManamon, Attorney General; William T. McClain and John Ready O‘Connor, Deputy Attor-
DRAPER, J.—The appellant was charged with receiving stolen goods, consisting of two radios, several shotguns, one rifle, one pistol and several fishing rods and reels. See
He was tried and found guilty of the same charge once before. That judgment was reversed by this court in 227 Ind. 619, 88 N. E. 2d 148, this court there holding that appellant‘s motion to quash the search warrant and suppress the evidence illegally obtained thereby was erroneously overruled prior to the first triаl. On remand that motion was, pursuant to the mandate of this court, sustained by the trial court before this trial was begun.
In this state the trial court is required to instruct the jury, immediately it has been sworn to try the case, as to the issues for trial, the burden of proof, the credibility of witnesses and the manner of weighing the testimony to be recеived. Rule 1-7A. While the court was reading those instructions to the jury the prosecuting attorneys brought into the courtroom, before the jury, several rifles and shotguns, a pistol, two radios and some fishing tackle. With the exception of one gun, these were the articles which were recovered by virtue of the invalid search warrant. The appellant objected and moved for a mistrial. The court, by gesture, ordered the articles removed from the courtroom, and then admonished the jury not to consider what had occurred in reaching their verdict, and overruled appellant‘s objection and motion.
At the conclusion of the opening statement the
Lаter, while a witness was being examined by counsel for the state, they again exhibited before the court and jury a 16 gauge automatic shotgun, which was one of the guns obtained by the execution of said search warrant. The jury was again told not to take into consideration the prosecuting attorneys’ conduсt in bringing this exhibit before the jury, and not to take it into consideration in making up its verdict.
The owner of the stolen goods was permitted to answer, in close sequence, that he had seen the stolen property after it was stolen from his store; he saw it at the police station; at that time the sheriff, the policе captain, the patrolmen and the defendant were there, and the appellant then and there said he had bought the guns from Roy Merrit.
The search was made by virtue of an improper warrant. Any evidence obtained thereby, whether it be the articles involved in the commission of the crime or oral еvidence of what was found or seen while such unlawful search was being conducted, is incompetent against the accused. Flum v. State (1923), 193 Ind. 585, 141 N. E. 353; Callender v. State (1923), 193 Ind. 91, 138 N. E. 817; Dearing v. State (1948), 226 Ind. 273, 79 N. E. 2d 535.
The articles were not offered in evidence. The state did not offer to exhibit them to the jury. It offered no direct evidence that the articles were ever in the possession of the defendant or that they were ever seen on or recovered from his premises.
The articles in question were the very things the appellant was charged with having feloniously received, as the jury could see and certainly knew. The state‘s persistent effort to keep them on display; the appеllant‘s no less determined effort to get them out of
We do not suggest that such is the case, but if counsel for the state, knowing that these articles should not be displayed to the jury, made repeated efforts to lay them before the jury for the purpose of compelling the appellant to make rеpeated objections, that in itself would be prejudicial error. Lynn v. State (1929), 113 Court of Criminal Appeals of Texas 637, 21 S. W. 2d 1042.
It seems to us that the attorneys for the state must have misconceived the effect of the order quashing the search warrant and suppressing the evidence illegally obtained thereby. Such an order does not serve merely to throw up obstacles which make proof more difficult. It strikes at the right to prove. It concerns itself not with methods, but with rights. It absolutely prohibits the state and its officers from putting evidence illegally obtained before the jury by methods either direct or devious.
It is true the court did on several occasions admonish the jury to disregard the display of these articles in making up its verdict. Such action on the part of the court was necessary and quite proper. But the frequent repetition of such an admonition, made necessary by improper conduct on the part of the prosecuting attorney, mаy of itself operate to emphasize rather than minimize the damage, for it may actually tend to attach to such evidence a wholly unwarranted and undeserved significance regardless of the admonitions. On the record before us we are forced to conclude that the appellant‘s constitutional rights
An officer who helped serve the search warrant returned a few hours later to arrest the appellant. He was permitted to testify, over appellant‘s objection, that while there for that purposе the appellant told him that he bought all of that stuff from Roy Merrit a week ago or longer; that Merrit came up on his porch about two o‘clock in the morning and he bought it from him at that time. The officer further testified: “I said to him, ‘What did you give him for it?’ and he said ‘Sixty-five dollars,’ and I said ‘Why were you in the act of removing the numbers frоm these guns?’ and he said, ‘I figured if I got them from Roy Merritt, I better get rid of them.‘” Since the question of the admissibility of that evidence may arise on retrial, we think it best to dispose of it now.
The objection to this testimony, now urged, is that it was obtained by virtue of an illegal search of appellant‘s premises, and while said illegal search, or a continuation thereof, was in progress.
The problem presented is not a new one.1 At common law evidence is admissible no matter how obtained, and many states still adhere to that rule. Others, including Indiana, hold that evidence illegally obtained may not be used against the accused. See cases first above cited.
But the fact that evidence illegally obtained by an unreasonable search or seizure may not be used against the accused does not necessarily mean that admissions made by him during the progress of, or following such a search, may not be used. The
The admissions were not obtained through the search warrant. They could not be. They were obtained through voluntary answers to questions. The officer had the right to question the appellant on his premises or elsewhere, but the appellant was not required to answer. He could have remained wholly silent had he chosen to do so. On the other hand, he had a perfect right to speak against his own interests if he freely and voluntarily chose to do so.
Evidence of a confession or admission is prima facie admissible. The burden of showing incompetency is on the accused. Schuble v. State (1948), 226 Ind. 299, 79 N. E. 2d 647; Marshall v. State, supra. Therе is absolutely no evidence here that the admissions of the appellant were not freely and voluntarily made.
This is not a case of first impression in Indiana. The law as above stated was laid down by this court nearly fifteen years ago. In Milbourn v. State of Indiana (1937), 212 Ind. 161, 8 N. E. 2d 985, the appellant was charged with knowingly receiving stolen clover sеed. The sheriff, armed with an invalid search warrant, arrested appellant and took him to his farm. While appellant sat in an automobile, the sheriff and his deputies searched the place. After the search was completed they interrogated appellant, who voluntarily admitted receiving the stolen goods, with knowledge that it was stolen, and having sold it for his own benefit. Before the trial, upon motion, the search warrant was held to be invalid, and evidence obtained in the search was excluded. It was contended that the confession and admission were obtained under color of the invalid search wаrrant, and the testimony should therefore have been excluded.
This court there pronounced the law substantially as above stated, and in its concluding remarks said:
“Voluntary statements and admissions of guilt cannot be procured by a search or seizure. When such admissions are procured unlawfully, it is through inducement, fеar, threat, intimidation, or undue influence, and there is no contention concerning, or evidence of, any such illegality in procuring the confession.” It has full application to the case at bar.
Judgment reversed and cause remanded with instructions to sustain motion for new trial.
Emmert, J., not participating.
NOTE.—Reported in 102 N. E. 2d 199.
ON PETITION FOR REHEARING
DRAPER, J.—In its petition for rehearing, apparently prepared by the prosecuting attorney of the 69th Judicial Circuit, the State complains that we held, in effect, that articles seized in an unlawful search “becomes sacred and inaccessible.” We did not mean to so hold.
The cases below noted are now cited to sustain the Statе‘s assertion that where knowledge of the defendant‘s possession of articles used or useful in violating the law is gained or had by witnesses independently of the violation of the defendant‘s constitutional rights, the testimony of such witnesses may be heard. Walker v. State (1928), 200 Ind. 303, 163 N. E. 229; Flum v. State (1923), 193 Ind. 585, 141 N. E. 353; Shorter v. State (1929), 89 Ind. App. 288, 166 N. E. 287. It is now asserted that if other witnesses could testify that the stolen articlеs were in appellant‘s home prior to the search, or if the defendant took the stand and admitted possession of the articles, they would be admissible in evidence, and the mere bringing of the articles into court is not of itself reversible error.
These assertions may rest on solid ground. It may also be that the аrticles in question could properly be produced in court and identified by the owner as the articles which were stolen from him in connection with proof that they were stolen. But those questions were
It was not asserted, nоr does the record show, that the articles were produced so that any other witness could identify them as articles seen by him in appellant‘s home before it was searched. It was not claimed, nor does the record show, that they were produced for the purpose of establishing them merely as the articles which had been stolen. There was no claim that the State was forewarned or had any reason to believe that the appellant would testify, and they wished to cross-examine him concerning them, and in fact the appellant did not testify.
We did not hold that because the appellant‘s premises were unlawfully searched and the articles were illegally seized they could under no circumstances and for no purpose be exhibited to the jury or introduced in evidence. As the case came to us it presented a course of conduct on the part of the prosecuting offiсials which was patently designed to acquaint the jury, by indirection, with the fact that these articles were found in the appellant‘s possession, in clear defiance of the appellant‘s constitutional rights, the decision of this court holding the articles to have been unlawfully seized, and the order of the trial court directing that the evidence be suppressed.
Neither in the briefs nor in argument were the present assertions made. The State‘s original brief admits that “the State was guilty of some indiscretion by virtue of bringing into court some of the evidence which had been previously ordered suppressed.” It further admits that “such рractices, although not strictly proper, may be attributed to the zeal of the Prosecutor in seeking a conviction.” The effect of such conduct was sought to be avoided only by the fact that the court admonished the jury “to disregard the display
Rehearing denied.
Emmert, J., not participating.
NOTE.—Reported in 102 N. E. 2d 763.