231 P. 683 | Wyo. | 1926
The defendant was convicted of stealing 33 head of sheep in Albany County, the property of one W.S. Pickens, and he appeals.
The defendant owned and occupied a farm in said county, about five miles north and west of the range of the complaining witness where the sheep in question, together with others to the number of about 4000, were grazing. *228
A storm from the southwest struck this range about November 18, 1921, and about 2000 of the sheep drifted away from the herd in a northerly direction. Either during the storm or immediately thereafter a number of the sheep drifted upon the range of the defendant, and were found there about November 20, 1921. Within a few days after the storm most of the sheep that were lost were found and recovered, but 200 of them were still missing. About November 28, 1921, Pickens, as he testified, saw one of his sheep among the band of sheep owned by defendant. These sheep of defendant were grazing on the open range, quite a distance away from the home of defendant, on land, so it would seem, owned by the government of the United States, but occupied as it was by defendant's sheep, no one else used this range. Defendant, it seems, had constructed a corral on this land, into which his sheep were driven for the nights. On the evening of December 4th, 1921, Pickens visited the defendant's sheep just as they were being driven into the corral, at which time, as he claims, he saw a number of his sheep in defendant's band. He thereupon, on the same day, filed an information with a justice of the peace, and a warrant was issued substantially in the form as the warrant considered by us in the case of Wiggin v. State,
1. Section 4 of Art. I of the Constitution of this state provides:
"The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by affidavit, particularly describing the place to be searched and the person or thing to be seized."
And Sec. 11 of the same article provides:
"No person shall be compelled to testify against himself in a criminal case."
These provisions were considered by this court in State v. Peterson,
"Lastly it is urged as an argument of utility that such search is a means of detecting offenders by discovering evidence. I wish some cases had been shown, where the law forceth evidence out of the owner's custody by process. * * * It is very certain that the law obligeth no man *231 to accuse himself; because the necessary means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it should seem, that search for evidence is disallowed upon the same principle. There too the innocent would be confounded with the guilty."
In the case of Boyd v. United States,
"We have already noticed the intimate relation between the two amendments. They throw great light on each other. For the `unreasonable searches and seizures' condemned in the fourth amendment are almost always made for the purpose of compelling a man to give evidence against himself which in criminal cases is condemned in the fifth amendment; and compelling a man `in a criminal case to be a witness against himself,' which is condemned in the fifth amendment, throws light on the question as to what is an `unreasonable search and seizure' within the meaning of the fourth amendment. And we have been unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself."
The case of State v. Slamon,
"The seizure of a person's private property to be used in evidence against him is equivalent to compelling him to be a witness against himself and in a prosecution for a crime is within the constitutional prohibition." *232
In the case of Weeks v. United States,
"In practice the result is the same to one accused of crime, whether he be obliged to supply evidence against himself, or whether such evidence be obtained by an illegal search of his premises and seizure of his private papers. In either case he is the unwilling source of the evidence, and the 5th amendment forbids that he shall be compelled to be a witness against himself in a criminal case."
The foregoing cases, it is true, related to documents obtained by unlawful search. There does not, however, appear to be any difference in principle between documents which may be used in evidence against a defendant and any other property which may be so used. That fact is recognized in the case of Amos v. United States,
In an exhaustive opinion by the Supreme Court of Missouri, in the case of State v. Owens,
"If the officer enter the dwelling of one not charged with a crime, and by stealth and forcibly without a warrant or any legal authority obtains papers of an incriminatory nature, it is almost universally held that such papers may not be produced in evidence. What difference does it make if the officer, by the same unlawful method discovers property, the implements for the commission of crime? Suppose an officer by that means discovers a letter or cancelled check, showing the defendant has violated the law by importing liquor; what is the difference between that and the discovery of liquor? One fact is exactly as significant as the other. The discovery of evidence of the offense occurs in exactly the same way. The fact that the defendant had no right to the liquor, that it is already forfeited to the state as contraband, does not affect the quality of the evidence."
In the case of Tucker v. State,
"The courts are unanimous in holding that the constitutional guaranty against self-incriminations is violated by confession of guilt extorted from a defendant by duress. What is the difference in principle in forcing a defendant to speak against himself by word of mouth, and in forcing, by an unlawful search, the secret things of his home to give evidence against him? We see none. His home is as sacred from illegal force as his person. When his home speaks, he speaks — they speak with the same voice. The invaders of his home are barred from testifying not only as to his forced confessions of guilt, made by word of mouth, but also to such confessions made through *234 the contents of his home and premises. The security afforded by our constitution against unreasonable search and seizure, and self-incrimination, are not to be given a narrow construction. They are a part of our Bill of Rights."
In the case of United States v. Kelih, (D.C.) 272 Fed. 484, the court said:
"It is further contended, because the Volstead act provides that there shall be no property rights in illicit liquors, or apparatus for their manufacture, that therefore the property in question does not come within the fourth and fifth amendments. The reason for the return of the property in all cases of this character is not based upon property rights so much as the personal security afforded by the Fifth amendment, which relieves a man from being compelled to be a witness against himself in a criminal case. To permit the government in this case to retain possession of the property described in the motion, and use it in the trial of the case before the jury, would be in legal effect to require this defendant to be a witness against himself in a criminal case, which is clearly prohibited by the constitution."
In the case of Snyder v. United States, (C.C.A.) 285 Fed. 1, reversing (D.C.) 278 Fed. 650, the property involved was intoxicating liquor, and the court said:
"The federal courts have therefore adopted the policy of excluding evidence illegally obtained by a federal officer, whether the evidence so obtained was by unlawful invasion of his home or person, on the ground that to hold otherwise would be to require him to supply evidence against himself." *235
This case was followed in United States v. Myers, (D.C.) 287 Fed. 260.
In the case of People v. Brocamp,
"There can be no question but that plaintiff in error has been compelled, under the showing in the record, to give or furnish evidence against himself, in violation of his constitutional rights."
In Woods v. United States, (C.C.A.) 279 Fed. 706, the unlawful seizure of narcotics was involved. The court said:
"The warrant thus being void, nothing that was procured under it could be used as evidence against defendant. To allow this to be done would be in effect to compel the defendant to become a witness against himself, in violation of the Fifth Amendment to the Constitution of the United States, which reads: `No person * * * shall be compelled in any criminal case to be a witness against himself.'"
To the same effect as the forgoing cases are Legman v. U.S., (C.C.A.) 295 Fed. 474; State v. Wills,
From the foregoing illustrations it clearly appears that the constitutional provisions above referred to stand somewhat in the same relation as cause and effect. Given an *236
unlawful governmental search and seizure and the introduction of evidence procured thereunder will have the effect of compelling the party who or whose property has been thus searched or seized to testify against himself in violation of his constitutional rights that he cannot be compelled to testify against himself in a criminal case. The principle is in harmony with, and is merely an application of, the ancient principle referred to in Entick v. Harrington, supra. The assumption by the authorities holding contrary thereto, that courts will never inquire into the method as to how evidence is obtained, no matter how unlawfully, is not well founded, and leaves altogether out of consideration, for instance, the principle established long ago that involuntary confessions, induced by agents of the government, are not admitted in evidence. It will be noticed that not all unlawful searches and seizures prevent the evidence obtained pursuant thereto from being used; that is true only when evidence is thus unlawfully obtained through officers of the law. The constitutional provision against unreasonable searches and seizures are a limitation on the powers of government, and the latter, which can act only through its agents, should not be permitted to do unlawfully what it cannot do lawfully, and should be bound by the acts of its authorized agents to the same extent as it should be where a confession is obtained unlawfully by them. See Dukes v. United States, (C.C.A.) 275 Fed. 142, 146. The rule that evidence unlawfully obtained as above mentioned is not based alone on the constitutional right of an accused to testify against himself in a criminal case. It rests, in part, as clearly appears from the cases, on the principle that the courts and their agencies shall not actually participate in procuring evidence illegally, and by a rule of evidence make nugatory the rights conferred by the constitution. Gore v. State, (Okla.Crim.App.)
We have thus far considered the relation of the two constitutional provisions above quoted in case of an unlawful search and seizure by officers of the law. What is the situation if the search and seizure is lawful? It is true, as was observed in the dissenting opinion in State v. Owens, supra, that the introduction of evidence obtained through a lawful search is just as truly compelling a defendant to testify against himself as when such evidence is obtained through an unlawful search, yet we have found no case, and none has been cited, where the evidence has been suppressed in the former case. To hold that it should be, would mean that the provision that no man shall be compelled to testify against himself is paramount, and that no evidence obtained by any search whatever, either pursuant to or without a warrant, could be so used. It would virtually abolish the use of all search warrants. It is possible that when Lord Coke, in 4 Inst. 176, denied the legality of a search warrant even in case of stolen goods, he meant to assert that under no consideration should evidence obtained from a defendant by legal compulsion be used against him. But that opinion did not prevail. In the case of Entick v. Harrington, supra, it was said that "the case of searching for stolen goods crept into the law by imperceptible practice. *238
It is the only case of the kind that is to be met with." See Jones v. State,
2. As to when a search and seizure is reasonable must necessarily, in view of Section 4 of Article I of our Constitution, be a judicial question. Watson on the Constitution, p. 1417; Agnello v. United States, (C.C.A.) 290 Fed. 671; Haile v. Gardner,
In the case of Falkner v. State (Miss.)
"The appellant had no greater right to operate the still on the land than had the officers of the law to enter it; hence the possession of a search warrant by them was unnecessary."
In the case of Brent v. Com.,
"We have been able to find no decision in which article 10 of the Constitution has been construed as prohibiting the searching of woodland, somewhat remotely situated from the residence of the owner. Neither have we been cited to any case in which the Fourth amendment to the federal constitution has been so extended. * * * Constitutional provisions of this kind rest on the fundamental principle that every man's house is his castle, and is inviolable. And we repeat that we have been cited to no case in which such a provision has been held to grant immunity from search and seizure of an unlawful thing situated in a woodland remote from the residence of the owner."
To the same effect as the foregoing cases are Colton v. Com.,
"The special protection accorded by the Fourth Amendment to the people in their `persons, houses, papers and effects' is not extended to the open fields. The distinction between the latter and the house is as old as the common law. 4 Bl. Comm. 223, 225, 226."
In the Ratzell case, the Supreme Court of Oklahoma, speaking of the constitutional provision against unreasonable searches, said:
"We think it would be stretching the meaning and purpose of this provision of our constitution too far to hold that these terms include a place in an unfrequented ravine or pasture, not near the place of abode, where a seizure would in no way disturb the privacy of the home or the business or occupation of the suspected violator of the law. These constitutional and statutory provisions were not designed to protect boot-leggers, rum runners, or other law violators. They were designed for the protection of innocent persons against arbitrary and unreasonable searches that invade the privacy of the ordinary affairs of life. One who goes into the woods, thickets or pastures of sparsely settled communities in search of contraband goods is not necessarily a trespasser, and a search for outlawed goods in such a place may not be `unreasonable' within the meaning of the constitution. Gibbons v. Ogden, 9 Wheat. 1;
We believe the reasoning of these cases is directly applicable to the case at bar in so far as the search and seizure of the 32 sheep on the open plain is concerned. The *243
evidence shows that the owner thereof had on a previous day recognized that some of his sheep were among the defendant's band of sheep; that the former were easily distinguishable on account of their wool and their size. In any event very strong reasons existed for thinking that the sheep of the complaining witness had been stolen and that they were in defendant's band. To say that under these circumstances the officer of the law, who had been informed of the facts by the complaining witness, and who had satisfied himself thereof by an examination made at a place where he had a right to be, was not authorized to interfere and seize the stolen sheep, or for that matter examine them in order to become convinced of facts which he had reasonable grounds to believe, would be, in our judgment, unreasonably stretching the constitutional provision invoked. No privacy of the home or the person, or of things intimately associated with a person, was invaded. That privacy is protected. But the function of government is not limited to that. To make persons secure in their property and protect them against the invasion of thieves who have no regard for the rights of others, is just as important, and without it, in fact, our civilization would vanish. Whether searches and seizures are unreasonable depends, to some extent at least, upon the articles procured and the circumstances under which they were obtained. State v. Ryan,
3. In addition to the 32 head of sheep above mentioned, one head was found and seized near the home or barn of the defendant. In the motion first filed by the defendant he asked the court for an order to "return, deliver and *244
redeliver the said 33 head of young sheep, taken as aforesaid, unto said Herman George, and * * * to suppress any and all evidence and testimony arising from the execution and service of said so-called search warrant, procured thereby." Later, before the commencement of the trial, the defendant objected "to the evidence of any witness whose testimony is based upon and obtained from an examination of the sheep alleged to have been stolen, or any of them, and that were taken * * * by authority of an alleged search warrant." It will be noted that there was no motion regarding, or objection to, the search and seizure of the one head of sheep at or near the barn or the evidence obtained pursuant thereto, separate and apart from the motion and objection which related to all of the sheep and to the evidence as a whole obtained pursuant to the search. We are inclined to think that while the court might in its discretion have separated the motion, sustaining it so far as good, it was not bound to do so. See Stickney v. Hughes,
"The law is well settled that an officer has the right to search the party arrested and take from his person and from his possession property reasonably believed to be connected with the crime, and the fruits, means or evidences thereof, and he may take and hold them to be disposed of as the court directs * * *. Nor can there be any doubt that where property of that character is, at a place to which lawful access has been obtained, visible to the officer, ready to be taken, that he may, upon the lawful arrest of the defendant, seize and take it into his possession."
In addition to the cases there cited see People v. Milone,
Not every arrest, of course, will warrant a search and seizure. It must be a lawful arrest. It will not be lawful, at least without a legal warrant, if made simply to make a search in connection therewith in order to discover whether a defendant has violated the law. The mere discovery of evidence of a crime pursuant to a search will not validate a search, or make lawful an arrest that would otherwise be unlawful. In cases of misdemeanor, the right to arrest without a warrant is limited, ordinarily at least, to cases where the offense is committed in the presence of the officer. Information, in such case, justifying him in the belief that an offense has been committed, will not authorize him to make an arrest. The facts constituting the offense must have been within the knowledge of the officer, and that knowledge must have been revealed and the facts capable of being observed in the officer's presence. Hughes v. State,
4. The court instructed the jury to the effect that in order to convict the defendant they must find that he took the sheep in question with a felonious intent to convert them to his own use. Among other things the court said:
"It is not sufficient, if the jury find that the defendant took the sheep in question, to convict him of the charge alleged, to find that after he obtained possession of the same, he then formed an intent to steal the said sheep in question."
No objection is made to this instruction, but it is rather insisted that it was the law of the case which the jury was bound to follow; that they necessarily found by their verdict that an intent to steal the sheep existed at the time that he obtained possession of the sheep, but that such finding *247
is contrary to the evidence. The sheep were lost in a storm, drifted about the country, and probably onto the land of defendant. Hence counsel think that the intent to steal, if any was formed, was necessarily formed after defendant had gained possession of the sheep. We think, however, that counsel misconstrue what the court meant by "obtaining possession." Simply because the sheep entered upon defendant's lands, they were not for that reason necessarily in his possession. Until he did some act indicative of the will to subject them to his control, the sheep remained estrays, and at least in the constructive possession of the owner. See 36 C.J. 758. Richey v. State,
5. The court gave the following instruction:
"The court instructs that if the jury believes from the evidence that the property mentioned in the information was stolen from the owner or owners, and that shortly thereafter the same was found in the possession of the defendant, and defendant has failed to explain how he obtained such possession, his failure to make such explanation may be considered by the jury and given such weight as they deem proper, in connection with the other evidence, tending to show guilt."
A number of objections are raised to this instruction, among which are that the instruction assumes that there was other evidence of guilt; that defendant did explain his possession, and that in no event does the recent possession of stolen property give rise to any inference of guilt unless that possession is personal or exclusive. We cannot enter into a consideration of these questions. No exception was taken to the instruction and the objections mentioned are now urged for the first time on this appeal. We are cited to the case of Gardner v. State,
We find no reversible error, and the judgment of the trial court should accordingly be affirmed, and it is so ordered.
Affirmed.
POTTER, Ch. J., and KIMBALL, J., concur.