Mike Eahn was convicted on a charge of unlawfully, having possession of intoxicating liquor. Erom the judgment of conviction he perfected the present appeal.
The record discloses the following facts: On August 11th, 1924, an affidavit was made before a justice of the peace of Ramsey county, for a search warrant to be issued under the provisions of chapter 97, Sess. Laws, 1921. A purported search warrant was issued by the justice directing the search of certain premises owned and in the possession of Mike Fahn," the defendant. On this appeal, the state concedes that this warrant was not in proper form and was void. No search was made until September 4th, 1924. On that day, the sheriff and his deputies wqnt to the dwelling house of the defendant. The sheriff had no warrant for the arrest of the.defendant. The defendant was not at home. His wife, however, was there. She came to the door of the house .and the sheriff informed her that he wished to search the premises. He did not produce the search warrant or serve it upon her, nor exhibit it to her. She offered no objection and he entered the house, lie went down cellar and there discovered a still in operation and also found several vessels containing moonshine alcohol. This still and the liquor were seized and taken into possession by the sheriff. *206 He made a return on tbe purported search warrant showing the property found and seized. Thereafter the defendant was arrested, informed against for unlawfully having possession of intoxicating liquor, tried, and convicted. On September 20th, 1924, the defendant made a motion in the district court of ftamsey county for an order in advance of the trial, barring the state from offering in evidence on the trial of the defendant any of the articles enumerated in the sheriff’s return. In support of this motion, the defendant contended that the search warrant was illegal, and that the sheriff had obtained possession of the liquor and apparatus while unlawfully upon the premises, in violation of the constitutional rights of the defendant as against unreasonable searches and seizures as guaranteed by both the 4th Amendment to the Constitution of the United States and § 18 of the Constitution of the state of North Dakota. This motion was denied. Subsequently, on the trial of the cause, the liquor found and seized by the sheriff was offered in evidence over objection on the part of the defendant. No evidence was offered on behalf of the defendant. No motion was made at the close of the case challenging the sufficiency of the evidence to .sustain a verdict of guilty, and no motion for -a new trial was made.
On this appeal, the defendant assigns four grounds for reversal. (1) Error of the court in denying the defendant’s motion to suppress the evidence. (2) Error in not setting aside the verdict and in entering judgment thereon. (3) Error in overruling his objections to the introduction in evidence of the exhibits. (4) The insufficiency of the evidence to sustain the verdict.
It is to be noted that the sufficiency of the evidence to sustain the verdict was not challenged either by motion for a directed verdict or after verdict by motion for a new trial. It is therefore plain that the question of the sufficiency of the evidence cannot be considered on this appeal. See State v. Glass,
• The defendant predicates error on account of the admission in evidence of the liquor seized over his objection that no foundation had been laid therefor in that the testimony as to its character was purely a conclusion of the witness. He insists that it does not appear from the record, except inferentially, that the liquor was alcoholic and intoxicating and that it was fit for beverage purposes. It appears, however, *207 that the state’s witness, Eutten, testified that he had drunk intoxicating liquor, and knew its effects; that he was acquainted with the smell of intoxicating liquor; that he had tasted the liquor offered in evidence and that it was an alcoholic mixture fit for beverage purposes and was intoxicating. We think that with this foundation the evidence was admissible. The testimony of Eutten was not vulnerable to the objection that it was merely a conclusion. In a sense it was a conclusion, just as every statement of facts, knowledge of which is acquired through the senses, is a conclusion. A chemical analysis might have been more satisfactory, but the questions of weight and credibility were for the jury.
The first and second assignments of error remain for consideration. They are aimed at the same proposition, that is, that the search was under a void warrant; that it was illegal and in contravention of both the 4th Amendment to the Constitution of the United States and of § 18 of the Constitution of the state of North Dakota.
Of course, in this case, the prosecution being under a statute of the state of North Dakota, the defendant is not in a position to invoke the provisions of the 4th Amendment to the Constitution of the United States. That applies only to Federal actions and is not concerned with state actions. See Minneapolis & St. L. R. Co. v. Bombolis,
There remains then the single question as to whether under § 18 of the Constitution of the state of North Dakota the evidence procured by the sheriff on the search and seizure was properly admissible, the search warrant being concededly invalid, and the defendant having-made timely application to suppress the evidence.
Section 18 of the Constitution of the state of North Dakota contains the same guaranties and is practically identical in language with the 4th Amendment to the Constitution of the United States. There are many cases in the books touching the question here for consideration, but there is a wide divergence among them. The United States courts following the case of Boyd v. United States,
Nearly all of the state courts, however, have refused to follow the Federal rule. These courts hold that the admissibility of evidence is not affected by the illegality of the means through which it was obtained, even though illegal because of violation of a constitutional provision forbidding unreasonable searches and seizures. See Banks v. State,
This court gave some consideration to the question here involved in the case of State v. Pauley,
“It is a generally recognized principle of the law of evidence that courts do not pause in the trial of cases to investigate whether physical evidence, such as intoxicating liquors kept, carried or sold contrary to law, was obtained lawfully or unlawfully. That is regarded as a collateral inquiry. The only matter considered by the court is whether such evidence is pertinent to the issue. Courts do not impose an indirect penalty upon competent evidence because of illegality in obtain *210 ing it. An ordinary police officer is not regarded as tbe agent of government if be acts outside tbe scope of bis authority in seizing tangible evidence of crime. He does not carry with him tbe support of tbe government, but incurs personal liability if be fails to keep within tbe bounds of bis duty. Outside those bounds be has no more color of authority than a private individual. Whether be commits a crime or a civil wrong, tbe offending officer alone is responsible. For tbe misconduct of a private individual tbe government is not answerable.- He may be brought to court to answer for his wrong either civilly or criminally. But bis misconduct ought not to hamper the government in tbe enforcement of laws and tbe preservation of order. Tbe wrong committed in seizing tbe liquor without a warrant was a transaction by itself. It has no necessary connection with its subsequent use as evidence.”
See also People v. Mayen,
Even those courts committed to tbe Federal bolding recognize tbe general rule that tbe admissibility of evidence is not affected by tbe illegality of tbe means through which it was obtained. They refuse to apply this rule, however, where tbe illegality arises by reason of a violation by governmental agencies of tbe constitutional provision against unreasonable searches and seizures. See Burdeau v. McDowell,
“As we understand it, the main, if not the sole, purpose of our constitutional inhibitions against unreasonable searches and seizures, was to place n. salutary restriction upon the powers of government. That is to say, we believe the framers of the Constitutions 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 operate 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 *212 under the guise of legislative sanction. For the misconduct of private persons, acting upon their individual responsibility and of their own volition, 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. The office of the Federal and state Constitutions is simply to create and declare these rights. To the legislative branch of government is confided the power, and upon that branch alone devolves the duty, of framing such remedial laws as are best calculated to protect the citizen in the enjoyment of such rights, and as will render the same a real, and not an empty, blessing. With faithfully enforcing such laws as are thus provided the responsibility devolving upon the executive and judicial branches must necessarily end. We know of nó lgw in Georgia which renders inadmissible in evidence the fruits of an illegal and wrongful search and seizure, nor are we aware of any statute from which it could be logically gathered that the admission of such evidence violates any recognized principle of public policy. 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.”
The record discloses no prejudicial error and the judgment of conviction must be affirmed. It is so ordered.