83 Wash. 100 | Wash. | 1914
Lead Opinion
On the 29th day of October, 1914, the defendant, J. J. Brown, was charged by information with the crime of attempting to corruptly influence an agent. Thereafter, and on the 5th day of November, 1914, the defendant filed in the cause a petition, wherein he prayed that $1,000 of money and certain papers then in the possession of the prosecuting attorney should be returned to him. Upon the presentation of this petition, an order to show cause was entered directing that the prosecuting attorney appear and show cause why he should not deliver the money and papers to the
To avoid confusion, the parties will be referred to as the defendant and the prosecuting attorney. The defendant in his petition alleged in substance: That he is a citizen of the Dominion of Canada; that, on the 15th day of October, 1914, he was sojourning in room 935, of the Frye hotel, in the city of Seattle, in King county, Washington; that, on this date, the prosecuting attorney in and for King county entered his room and stated to the defendant that he, the prosecuting attorney, had power and authority to arrest the defendant, although at the time the prosecuting attorney was without a warrant or authority to make such arrest; that the prosecuting attorney then commanded the defendant to go with him from his room to the office of the prosecuting attorney in the Alaska building in the city of Seattle; that, upon arriving at the office of the prosecuting attorney, he demanded that the defendant deliver to him $1,000 in money, then upon the person of the defendant; that at the time the prosecuting attorney commanded the defendant to go with him from his room in the hotel to the office of the prosecuting attorney, the latter commanded and directed the defendant to bring with him all his personal belongings, .including two leather grips and their contents,' which contained, among other things, papers in the handwriting of the defendant; that, upon arriving at the office of the prosecuting attorney, before the issuance of a warrant, and before the filing of any complaint or information against the defendant, the prosecuting attorney demanded that the defendant surrender and
Upon this petition, as above stated, a show-cause order was issued. The prosecuting attorney, in his return to the order to show cause, denies that, in room 935 in the Frye hotel on the 15th day of October, 1914, he stated to the defendant that as prosecuting officer of King county he had power and authority to arrest the defendant; admits that he •requested the defendant to come with him from his room in the hotel to the prosecuting attorney’s office in the Alaska building; admits that, after arriving at his office, he requested the defendant to deliver to him $1,000 in money then upon the person of the defendant; admits that, after arriving at his office, he requested the defendant to deliver to him whatever papers were in his possession relative to the case under consideration; admits that he requested the defendant to bring his grips and papers from the Frye Hotel to the prosecuting attorney’s office; admits that, after arriving at his office, he demanded of the defendant $1,000 in money, and in addition thereto whatever papers and documents the defendant had in his custody and possession bearing upon the question then under investigation. The prosecuting attorney, in his return, denies that he refused to permit the defendant to telephone to his attorney; denies that the money
Further answering the order to show cause, the prosecuting attorney alleges: That on the 15th day of October, 1914, in addition to being the qualified and acting prosecuting attorney in King county, Washington, that he was a duly appointed, qualified, and acting deputy sheriff; that on the 14th day of October, 1914, complaint had been made to him that the defendant had violated and was continuing to violate § 426 of chapter 249 of the session laws of 1909 (Rem. & Bal. Code, § 2678) ; that, for the purpose of ascertaining the truth of the charge, the prosecuting attorney, on the 15th day of October, 1914, in company with others, was in an adj oining room in the Frye hotel to the room occupied by the defendant and that, at that time, there was therein one W. F. Heppenstahl, an employee of the William J. Bums International Detective Agency; that, at said time and place, the prosecuting attorney had in operation in said room of the defendant a dictograph; that the prosecuting attorney and others, by virtue of the dictograph, heard the defendant offer Heppenstahl $1,000 as compensation, gratuity, and reward in consideration of the revelation and disclosure to the defendant by Heppenstahl of the name of the client of the William J. Bums Detective Agency who was paying the detective agency for investigation by it then proceeding in the Dominion of Canada; that, thereupon, the defendant instructed Heppenstahl to place the name upon a slip of paper and that he would place $1,000 upon the bureau; that the defendant counted out the sum of $1,000 in money; that, at this time, the prosecuting attorney knocked upon the door of room 985, occupied by the defendant under the name of J. J. Harris; that the door was opened and the prosecuting attorney then walked in and
As above noted, the superior court granted the motion, which was similar in its nature to that of a motion for judgment on the pleadings in a civil action. To sustain a judgment entered upon such a motion, all the allegations of the prosecuting attorney’s return to the order to show cause must be taken as true. The defendant, in his petition, does not charge that the money and papers were surrendered by reason of force or duress, or even under protest. There is no statement, in either the petition or the return to the show cause order, which shows the nature or course of the conversation which took place between the defendant and the prosecuting attorney in the latter’s office. According to the allegations in the return to the order to show' cause, when the surrender of the money and papers was demanded by the prosecuting attorney, the defendant was informed that they were to be used as evidence upon the trial of a charge which was to be filed against him, and that the defendant voluntarily, with the statement “I suppose you have the right to,” surrendered them. If the allegations in the prosecuting attorney’s return are true, the money and papers were voluntarily surrendered by the defendant to the prosecuting attorney for the purpose of being used as evidence upon the trial of a charge which was to be filed.
The general rule is that, where a person is legally arrested, the arresting officer has a right to search such person, and take from his possession money or goods which the officer reasonably believes to be connected with the supposed crime,
“The arresting officer ought to consider the nature of the accusation; then if he finds on the prisoner’s person, or otherwise in his possession, either goods or money which he reasonably believes to be connected with the supposed crime, as its fruits, or as the instruments with which it was committed, or as supplying proofs relating to the transaction, he may take and hold them to be disposed of as the court directs. And discoveries made in this lawful search may be shown at the trial in evidence; as, marks and scars on the prisoner’s person; and if there are tracks supposed to be his, the officer may require him to put his feet into them, or to take off his boots to be compared with them, the result to appear in evidence at the trial.”
In Weeks v. United States, 232 U. S. 383, 393, speaking upon the question of the right to search the person of one under legal arrest, it is said that such right has always been recognized under English and American law, and has been uniformly maintained in many cases. In the present case, if the allegations in the prosecuting attorney’s return to the order to show cause are true, the defendant had not been placed under arrest at the time he surrendered the money and papers in question, but that they were voluntarily surrendered with full knowledge of the purposes for which they were to be used. If the papers and money were voluntarily surrendered, no right of the defendant was invaded. These facts would not bring the case within the rule of the cases cited in the brief, which directed the return of the property where it had been illegally taken from the defendant. That the money and papers would be material and relevant evidence upon the trial of the defendant upon the charge of attempted bribery does not seem to be controverted.
The defendant cites, and apparently relies upon as sustaining his right to the papers, the case of Weeks v. United States, supra. That case, however, is distinguishable from
A number of other questions are discussed in the briefs, but the conclusion we have already reached renders a consideration of them unnecessary. It follows that the judgment must be reversed, and it is so ordered.
Crow, C. J., Ellis, and Fullerton, JJ., concur.
Dissenting Opinion
(dissenting) — It is not disputed that the money taken from the defendant is the property of the defendant. It is not clear that the money is necessary to be used as evidence upon the trial. But conceding that it may be useful and necessary as such evidence, the trial court, in its discretion, may control it and order it returned to the rightful owner, either before or after the trial. Such discretion will not be reviewed except for abuse. There is no abuse of discretion .shown here. It seems to me, therefore, that the writ should be dismissed and the order affirmed.
I therefore dissent.