36 N.H. 64 | N.H. | 1858
The decision of this case does not require that we should consider the question whether the fourth section of the statute of 1855, for the suppression of intemperance, is consistent with the provisions of the constitution of the United States or of this State.
The case furnishes us no opportunity for considering any objection which might be supposed to exist from failure to comply with any of the requirements of the constitution or laws relative to the manner of issuing the warrant in this instance. All that appears is, that a search was made under a warrant, upon which certain facts were seen or ascertained by the witnesses.
The question whether evidence obtained by means of a search-warrant is to be received, was raised upon a former indictment, State v. Glynn, 34 N. H. 422; and it was there held, that the officers who had made a search of the respondent’s premises, might be admitted as witnesses, without proof of due legal proceedings, according to the provisions of the act referred to ; that their evidence was competent on general principles, since the witness is no legal party to the prosecution, is not entitled to any thing upon a conviction, and is not liable for costs ; that he cannot in any event either gain or lose by the prosecution. And the provision of the section before referred to, that they may be witnesses, was introduced ex abundanti cautela, and was wholly unnecessary.
This decision must be regarded as settling here one point in this case, namely, that the knowledge ordinarily acquired in consequence of a search-warrant is admissible at common law in evidence, and this notwithstanding the object of the search, or at least one great object of the search, may be that of obtaining evidence.
That we do not find in any of the books of evidence any rule excluding the evidence of parties concerned in a search, is very
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. Bill of Rights, Art. 15.
If the objection were admitted to be well founded in fact in this case, we are unable to assent to it. Evidence is often procured in modes and by means which are not justified by the rules of fair dealing, by good morals, nor by law; but we are not aware that it is ever rejected for that cause, except in a single case, where a party accused has been induced to make statements or admissions, by threats or by promises of favor, made by the prosecutor, or officer having the prisoner in custody, or by a magistrate, or by a private person in their presence. Greenl. Ev., sec. 222.
But where evidence is extorted from unwilling witnesses by artful and unfair cross-examination ; where parties have been induced to disclose their plans to those who have wormed themselves into their confidence, by assuming to act as confederates; where clergymen have availed themselves of their sacred office, to visit the prisoner’s cell and urge him to confess a crime, which must be punished by his death; or where eaves-dropping of the meanest character has been resorted to, the testimony is always received, though juries are cautioned to examine it carefully, and to place little reliance upon it, except where it is sustained by other proof. Rex v. Simons, 6 C. & P. 540.
Where a party has obtained admission to the premises of another by fraud, or unauthorized force and violence, and has thus unfairly and illegally acquired information injurious to the owner personally, or to his interests, which could not have been other
It would be vain to attempt to enumerate the cases where officers of justice .force themselves into the houses of others, and yet are allowed to testify what they see. Arrests are made in gambling places and other disorderly places, and the police break into houses, where an outcry indicates some gross disturbance or breach of the peace, and so of many other cases; and we are not aware that it has been questioned that they are competent witnesses to testify what they saw on those occasions, nor do we recollect a case where it has been made a question whether they were acting within the scope of their powers, as a test of the admissibility of their evidence.
It seems to us an unfounded idea that the discoveries made by the officers and their assistants, in the execution 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 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 be called, which he endeavors to keep out of sight, so that they may not disclose the facts which he is desirous to conceal. By force or, fraud access is gained to them, and they are examined, to see what evidence they bear. That evidence is their’s, not their owners. If a party should have the power to keep out 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 witnesses 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
In the cases of Leggatt v. Tallervey, 14 East 302, and Jordan v. Lewis, 14 East 306, note, both of which are cited in the able argument of the counsel for the State, it was distinctly held that evidence, pertinent to the issue, and otherwise free from objection, will not be rejected because it has been either illegally or improperly obtained. And in the Commonwealth v. Dana, 2 Met. 329, cited by the same counsel, both the questions before stated were distinctly raised and decided in the Supreme Court of Massachusetts. It was a case of a search-warrant for the seizure of lottery tickets illegally kept for sale. The provision of the constitution of Massachusetts which forbids that a party should be compelled to furnish evidence against himself, is very nearly in the words of our own con^itution. The case was strongly contested and ably argued, on both the points before us here, and it was held by the court that the evidence obtained by means of a search-warrant, however illegally issued, is in no respect evidence furnished by the party himself, within the meaning of the constitution; and it was also held, upon the authority of the two cases in East, that the evidence would not be rejected because it was obtained by fraud, or a violation of law, if it was otherwise competent and pertinent to the issue.
These decisions seem to us to be sound and correct, and they satisfy us of the correctness of our conclusions, before stated.
The objections being overruled, there must be
Judgment on the verdict.