after stating the case: The testimony in regard to the number of housebreakings which had recently been committed was incompetent and should not have been admitted by the court. It was irrelevant to the issue, as it did not tend to prove the fact of guilt, and was certainly prejudicial to the prisoner. Nothing could be more harmful than such evidence. It was calculated to inflame the minds of the jurors against the prisoner and to prevent that calm and impartial consideration of his case to which he was entitled. No connection is shown between the alleged crimes and this one, and there is no evidence even that the prisoner had anything to do with the commission of the other offenses. The evidence had no tendency to prove any relevant fact and had the effect only to provoke hostility to him. Underhill on Criminal Ev., sec. 87;
S. v. Frazier,
As to the motion for the surrender of property to the prisoner, we are of the opinion that there was no error in the denial of it by the judge.
First. The property taken from the prisoner’s person at the Union Station came lawfully into the possession of the officers. Numerous housebreakings had been committed in that vicinity and the policemen were on the lookout for the guilty parties. It is clearly inferable from the testimony that they suspected the two men seen by them on the night of the arrest, the prisoner being one of them. Being known officers, charged with the duty of preventing breaches of the peace and with arresting violators of the law, they had the right, on suspicion, to arrest the prisoner without a warrant and take him within a reasonable time, or as soon as they conveniently could do so; before some magistrate authorized to hear the charge against him and to commit or bail him.
*911
This they did. It is said in
S. v. Belk,
Second. As to the newspaper clipping, mutilated coin, and any other property taken from the house of Ida Fowler, sister of the prisoner, the ease, if anything, is much stronger for the State. The testimony of the officers — which the court found to be true, having found the facts to be as therein stated — was all to the effect that they were careful not to enter the house without the consent of its owner, and that before they entered they had actually been invited by her to come
*912
in, and that, everything done by them after they entered was with the express consent of Ida Fowler and her sister-in-law. They were told by Ida that the house belonged to her, and also the contents of the room in which the search was made. She claimed the money and other property, and consented to an exchange of the mutilated silver coin for one of similar kind and denomination.
We
do not see how, upon this showing, the case can be brought within the principles declared in
Weeks v. U. S., supra,.
There the papers were seized
in invitum,
while here they were taken by the officers with the full consent of the parties having at the time possession of-them with apparent ownership . — a consent that the judge finds from the officer’s testimony was given voluntarily and without the display of any force or compulsion. In
Weeks v. U. S., supra,
the Court said that where incriminatory documents (or other articles) are found in a lawful search, even where the find is incidental merely to a legal search for other goods; as, for instance, gambling paraphernalia, they may be used as evidence against the accused on a trial of an indictment for the crime to which the documents related, citing
Adams v. New York,
It was held in S. v. Griswold, supra: “Searching the office of an accused person with the consent and aid of his servant, an agent, who was in possession, in order to obtain evidence against the accused is not in violation of the constitutional provision against unreasonable searches; and the taking away of an article found there, with the consent of the agent, is not a ‘seizure.’ ”
That case would, therefore, seem to be precisely in point and a conclusive authority; if followed, as to both questions raised upon this record. The prisoner based his motion on the fourth, fifth, and fourteenth amendments to the Federal Constitution, and on the Constitution of the State, Art. I, secs. 11, 15, and 17.
With reference to a similar question presented in
S. v. Atkinson, supra,
the Court said: “The provisions of the Constitution of the United States relied upon are the fourth, fifth, and fourteenth amendments, and the provisions of the Constitution of this State may be found in sections 13- and 22 of Article I. In the fourth amendment of the Constitution of the United States it is declared that ‘The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated,’ etc. In the fifth amendment it is declared that no person ‘shall be compelled in any criminal case to be a witness against himself,’ etc.; 'while in the fourteenth amendment the declaration is: ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,’ etc. In the first place, we do not understand that the limitations imposed by-the fourth and fifth amendments have any application to the powers of the State governments, but apply only to the powers of the Federal Government. As was said by
White, C. J.,
in
Spies v. Illinois,
This doctrine as to the competency of writings obtained by illegal means is well stated in 1 G-reenleaf on Ev., sec. 254a: “It may be mentioned in this place that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question.” It was further said in
S. v. Atkinson, supra,
So it will be seen that under the authority of those cases there has been no illegal search of his home, or forcible seizure of the prisoner’s property, either from his person or his house, but all the property was obtained by the free consent of those who had charge of the place where they were found, in the case of some of the articles, and, as to the others, they were taken from his person in a lawful manner, as we have shown. The question as to the competency of the evidence is fully discussed and decided in
S. v. Wallace,
The result is that a new trial is ordered because of the admission of improper testimony, and the order of the judge refusing to require the officers to deliver up the property is affirmed.
New trial.