118 Wash. 171 | Wash. | 1922
— Upon an information filed in the superior court for Adams county by tbe prosecuting attorney of that county, tbe defendant, Gibbons, was by a jury found guilty of tbe offense of unlawfully having in his possession in that county, on December 24,1920, intoxicating liquor, to wit, twelve quarts of whiskey; the jury further finding that, on November 6,1918, defendant had been duly convicted in the superior court for Spokane county of the offense of unlawfully having an excess quantity of liquor in his possession, all as charged in the information filed against him in this case. The trial court rendered judgment against the defendant upon these findings, adjudging him guilty of the aggravated offense. Prom this judgment, he has appealed to this court.
The words, “excess quantity of liquor,” found in the record of the former conviction of the appellant, introduced in evidence in this case, and also found in the information and verdict in this case, indicate that his former conviction was under § 22 of initiative measure No. 3, adopted by a vote of the people in November, 1914, reading as follows:
“It shall be unlawful for any person to have in his possession more than one-half gallon or two quarts of intoxicating liquor other than beer, or more than twelve quarts or twenty-four pints of beer: .. . .” Laws of 1915, p. 14; Rem. Code, § 6262-22.
The conviction of the defendant in this case was under §§11 and 15, ch. 19, pp. 60 and 61, Laws of 1917, which are amendatory to initiative measure No. 3 of 1914; which sections, in so far as we need here notice them, read as follows:
“Sec. 11. That said initiative measure No. 3 be amended by adding thereto a new section to be known as section 17h and to read as follows:
“Section 17h. It shall be unlawful for any person*174 . . . to have in his possession any intoxicating liquor other than alcohol. . . .
“Sec. 15. That section 32 of said initiative measure No. 3 be amended to read as follows:
‘ ‘ Section 32. Every person convicted the second time of a violation of any provision of this act, for which the punishment is not specifically prescribed, shall be punished by a fine of not less than two hundred nor more than five hundred dollars and by imprisonment in the county jail for not less than thirty days nor more than six months and every person convicted the third time of a violation of any provision of this act shall, for such third and each subsequent conviction, be punished by imprisonment in the penitentiary for not less than one nor more than five years. Every prosecuting attorney, and every justice of the peace, having knowledge of any previous conviction or convictions of any person accused of violating this act, shall in preparing a complaint, information or indictment, for subsequent offenses, allege such previous conviction or convictions therein, and a certified transcript from the docket of any justice of the peace, or a copy of the record of any court of record, certified by the clerk thereof under the seal of the court, shall be sufficient evidence and proof of such previous conviction or convictions.”.
It is first contended in appellant’s behalf that § 11 of the act of 1917, above quoted, which is amendatory to initiative measure No. 3 of 1914, is rendered void and of no effect by the passage of the National prohibition law (the so-called Volstead act), which reads in part as follows:
“. . .■■ it shall not be unlawful, to possess liquors in one’s private dwelling . . .”41 Stat. L., p. 317, §33.
The argument is that our state law is in conflict with the Federal law touching the possession of liquor in one’s dwelling; that is, that the ban of our law rests upon liquor possessed in one’s dwelling as well as possessed elsewhere; while the Federal law in terms makes
“. . . the state prohibition law has not been abrogated, suspended or superseded by the National prohibition act, except in so far as the state prohibition law is in conflict with the National prohibition act.”
Our late decisions in State v. Turner, 115 Wash. 170, 196 Pac. 638, and State v. Woods, 116 Wash. 140, 198 Pac. 737, render it plain that such is the settled law of this state.
It is contended that the amendatory act of 1917, above quoted from, and under which this prosecution is being waged, is void and of no effect because it was enacted by the legislature in violation of the provision of the initiative and referendum provision of the seventh amendment to our constitution, reading as follows:
*176 “ (c) . . . No act, law, or bill approved by a majority of the electors voting thereon shall be amended or repealed by the legislature within a period of two years following such enactment. ’ ’
Initiative measure No. 3 was adopted by the people at the November election of 1914, and such adoption evidenced by proclamation of the Governor on December 5, 1914. The concluding section of that measure and act reads as follows:
“Sec. 33. This act shall take effect and be in full force and effect from and after the first day of January, 1916. ’ ’ Laws of 1915, p. 17.
The amendatory act of 1917, above quoted from, was passed by the legislature and approved by the Governor on February 19, 1917; more than two years following the vote of the people upon initiative measure No. 3 and the proclamation of the Governor evidencing the adoption of that measure, but less than two years following January 1,1916, the time of the taking effect of that act by its terms as expressed in § 33 thereof. The argument is, in substance, that the words, “two years following such enactment, ’ ’ in the above quotation from the seventh amendment to our constitution, mean two years following the time when an initiative measure, by its own terms, is to take effect; and that, since initiative measure No. 3, by its own terms, was not to take effect until January 1, 1916, it could not be constitutionally amended within two years from that date. We cannot agree with this view. The word “enactment,” used with reference to the making of a law, may possibly, under some circumstances, be used in such manner with "reference to some act to be done or duty to be performed in pursuance of its terms as to call for its construction as meaning “taking effect;” but we see nothing in the initiative provision of our constitution to
• Contention is made in appellant’s behalf that the superior court erred in putting him upon trial to answer a complaint different from that which was first filed against him in the justice court. On December 24,1920, appellant was charged by the prosecuting attorney, by a complaint filed with a justice of the peace, with the simple offense of unlawfully having in his possession intoxicating liquor, as being committed on that day. This complaint was filed, apparently looking to a final
The argument seems to be that appellant had the right to be tried and finally adjudged guilty or not guilty in the justice court upon the first complaint filed therein; this upon the theory that that complaint charged an offense which the justice court could hear and render a final judgment upon. We fail to see in what respect appellant’s rights were in the least prejudiced by the course pursued by the prosecution. Manifestly the superior court had jurisdiction over the aggravated offense for which the appellant was tried upon information filed in that court. The jurisdiction, power
Contention is made in appellant’s behalf which we understand to be, in substance, that the superior court' erred in receiving in evidence a duly certified record of the superior court of Spokane county evidencing appellant’s prior conviction as charged. The argument is addressed wholly to the question of the constitutionality of the concluding language of § 32 of initiative measure No. 3, ás amended by § 15 of the act of 1917, above quoted, which is that such certified record of conviction “shall be sufficient evidence and proof of such previous conviction or convictions. ” It is argued that this provision is unconstitutional, upon the theory that it is an attempt on the part of the legislature to make such certified record of conviction conclusive proof of the previous conviction or convictions sought to be proven. We think, at all events, such argument is wholly without avail here. There is nothing in the court’s instructions to the jury, nor elsewhere in the record, indicating that the jury was advised or told that such certified record of conviction was conclusive proof of appellant’s previous conviction. It seems plain to us that as long as the jury were left free to find for or against appellant upon the question of his
Some errors are assigned upon the giving of the court’s instructions to the jury. These questions, however, are presented to us in such manner as to make their disposition quite unsatisfactory in the light of the record before us. We may observe, however, that one or two of these instructions, especially that numbered 9, are somewhat unfortunately worded. We think it sufficient to here observe that, upon a new trial, the questions presented touching these instructions will hardly be likely to arise. Therefore we pass them without further comment.
We now come to a claim of error, made in appellant’s behalf, which we feel constrained to hold must be sustained. It is that the trial court erred in admitting in evidence certain bottles of whiskey taken from the possession of appellant by the sheriff of Adams county without the authority of any search warrant, and at a time when the sheriff had no authority by warrant or otherwise to arrest appellant. On the day in question, appellant drove in an automobile from Spokane to Ritz-ville. The automobile being stopped on a street in Ritz-ville for a short time, and the sheriff seeing appellant occupying the driver’s seat in it there, suspected that appellant had intoxicating liquor in his unlawful pos
These events, established beyond dispute by the state’s own witnesses, we have felt the necessity of relating in considerable detail, to the end that the premise-up on which we are to decide whether or not the seizure of the whiskey was unlawful, be made plain; since, as
It is argued that, when the whiskey was actually brought into view upon the opening of the suit case at the sheriff’s office, he then having in his possession a search warrant authorizing him to search for and seize the whiskey, his act at that time must be considered as a then lawful seizure of the whiskey in pursuance of his authority under the search warrant. The fallacy of such a view lies in the fact that the sheriff had, before any search warrant was issued, completely seized and taken into his possession the appellant, the automobile and all that was in it, including the whiskey; though he did not actually see the whiskey until after arriving at the court house. This was plainly an illegal seizure of the whiskey, in so far as want of a search warrant is concerned; and the possession of the sheriff could not be rendered legal by the coming into his hands of the search warrant which was issued after such unlawful seizure.
It is equally plain to us that the seizure of the whiskey was not lawful, as incident to appellant’s arrest, as a seizure of evidence of crime incident to the lawful arrest of an accused sometimes becomes lawful; for even the arrest of appellant was unlawful, the sheriff having no warrant therefor. It is not pretended that appellant was suspected of committing a crime amounting to a felony; nor that he was disturbing the peace; nor even that the sheriff had any actual knowledge that appellant was then committing the misdemeanor of unlawfully having intoxicating liquor in his possession. We think the most elementary principles of the law of arrest render it plain that the arrest of ap
Before appellant entered his plea of not guilty, his counsel in open court demanded of the sheriff and prosecuting attorney the return of the whiskey seized by the sheriff, and asked the court to make an order accordingly ; offering to then prove facts showing the unlawful seizure of the whiskey by the sheriff. This demand was refused, and the application for the order was by the court summarily denied without hearing any evidence. This move by appellant’s counsel was, of course, to prevent the introduction of the whiskey in evidence against him upon the trial. Thereafter appellant plead not guilty and the trial proceeded; during which the whiskey was introduced in evidence by the prosecution, over the objection of appellant’s counsel, after the facts showing the manner of its illegal seizure by the sheriff, as above related, had fully appeared by the testimony of the state’s own witnesses. There is here invoked in appellant’s behalf, in support of the contention that the trial court erred in admitting the whiskey in evidence against him, the guaranties of the Federal and state constitutions against unlawful search and the compelling of an accused person to give evidence against himself. These guaranties are expressed in the fourth and fifth amendments to the Federal constitution as follows:
“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 warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
*184 “No person . . . shall be compelled in any crimr inal case to be a witness against himself, . . .”
and are expressed in §§ 7 and 9, art. I, of onr state constitution, as follows:
“No person shall be disturbed in his private affairs, or his home invaded, without authority of law. ’ ’
“No person shall be compelled in any criminal case to give evidence against himself, . .
We thus quote from both the Federal and state constitutions to show that these guaranties are in substance the same in both, making the law upon the subject as expounded by the supreme court of the United States, presently to be noticed, a proper aid in our present inquiry, apart from the question of whether or not these guaranties as expressed in the Federal constitution are of themselves controlling of the rights of persons which may be drawn in question in our state courts under our state laws. The question of the introduction against an accused person of evidence the possession of which is unlawfully obtained in violation of his constitutional rights — as was the evidence here in question —has been the subject of extended discussion by the supreme court of the United States in several decisions rendered by that court in recent years. To review those decisions at length here would be to unnecessarily repeat the history of that long struggle for the security of personal rights in the English-speaking world which induced the adoption of these guaranties into the Federal constitution and into most, if not all, of the state constitutions of our Union, and the reasons so learnedly expressed in those decisions for giving these guaranties full force and effect. It seems to us enough for present purposes to take note of the last expression of that great court, found in its recent decision rendered February 28,1921, in Amos v. United States, 255 U. S. 313. That was a prosecution by the government where
“After the jury was sworn, but before any evidence was offered, the defendant presented to the court a petition, duly sworn to by him, praying that there be returned to him described private property of his which it was averred the district attorney intended to use in evidence at the trial, and which had been seized by P. J. Coleman and C. A. Rector, officers of the government, in a search of defendant’s house and store ‘within his curtilage,’ made unlawfully and without warrant of any kind, in violation of his rights under the 4th and 5th Amendments to the Constitution of the United States.
“Upon reading of this petition and hearing of the application it was denied, and, exception being noted, the trial proceeded.
‘ ‘ Coleman and Rector were called as witnesses by the government and. testified: that, as deputy collectors of internal revenue, they went to defendant’s home, and, not finding him there, but finding a woman who said she was his wife, told her that they were revenue officers, and had come to search the premises ‘for violations of the revenue law;’ that thereupon the woman opened the store and the witnesses entered, and in a barrel of peas found a bottle containing not quite a half-pint of illicitly distilled whiskey, which they called ‘blockade whiskey; ’ and that they then went into the home of defendant, and, on searching, found two bottles under the quilt on the bed, one of which contained a full quart and the other a little over a quart of illicitly distilled whiskey. The government introduced in evidence a pint bottle containing whiskey, which the witness Coleman stated ‘was not one of the bottles found by him, but that the whiskey contained in the same was poured out of one of the two bottles that had been found in defendant’s house on the bed under the quilt, as stated.’*186 On cross-examination both witnesses testified that they did not have any warrant for the arrest of the defendant, nor any search warrant to search his house, and that the search was made during the daytime, in the absence of the defendant, who did not appear on the scene until after the search had been made.
“After these two government witnesses had described how the search was made of defendant’s home without warrant either to arrest him or to search his premises, a motion by counsel to strike out their testimony was denied and exception noted.
“This statement shows that the trial court denied the petition of the defendant for a return of his property, seized in the search of his home by government agents without warrant of any kind, in plain violation of the 4th and 5th Amendments to the Constitution of the United States, as they have been interpreted and applied by this court in Boyd v. United States, 116 U. S. 616, 29 L. Ed. 746, 6 Sup. Ct. 524, in Weeks v. United States, 232 U. S. 383, 58 L. Ed. 652, L. R. A. 1915B 834, 34 Sup. Ct. 341, Ann. Cas. 1915C 1177, and in Silverthorne Lumber Co. v. United States, 251 U. S. 385, 64 L. Ed. 319, 40 Sup. Ct. 182, and also denied his motion to exclude such property and the testimony relating thereto, given by the government agents after both were introduced in evidence against Mm, when he was on trial for a crime as to which they constituted relevant and material evidence, if competent.
“The answer of the government to the claim that the trial court erred in the two rulings we have described is, that the petition for the return of defendant’s property was properly denied because it came too late when presented after the jury was impaneled, and the trial, to that extent, commenced, and that the denial of the motion to exclude the property and the testimony of the government agents relating thereto, after the manner of the search of defendant’s home had been described, was justified by the rule that, in the progress of the trial of criminal cases courts will not stop to frame a collateral issue to inquire whether evidence offered, otherwise competent, was lawfully or unlawfully obtained.
“Plainly, the questions thus presented for decision*187 are ruled by the conclusions this day announced in No. 250, Gouled v. United States (254 U. S. —, ante, 311, 41 Sup. Ct. 261) . . . The facts essential to the disposition of tbe motion were not and could not be denied; they were literally thrust upon the attention of the court by the government itself. The petition should have been granted; but, it having been denied, the motion should have been sustained.”
A learned and somewhat extended review of this question may also be found in the recent decision of the supreme court of Michigan in People v. Marxhausen, 204 Mich. 559, 171 N. W. 557, wherein the law is announced by that court in full harmony with the views of the Federal supreme court, above noticed; and wherein there is in like manner given full force and effect to the guaranties against unlawful search and the compelling of an accused to be a witness against himself, found in the Michigan constitution in substance as those guaranties are found in our constitution. That case involved the seizure of liquor in the home of the accused during his absence, without his consent and without any search warrant authorizing search for or seizure of such liquor. The prosecution failed because the evidence so unlawfully obtained, as it was ruled, could not be lawfully used against the accused.
We note that the ease before us does not involve a search or seizure of whiskey in the home of appellant; but manifestly the constitutional guaranty that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law,” protected the person of appellant, and the possession of his automobile and all that was in it, while upon a public street of Bitzville, against arrest and search without authority of a warrant of arrest, or a search warrant, as fully as he would have been so protected had he and his possession been actually inside his own dwelling; that
“ ‘To permit a demand to he made on the defendant in a criminal case, in the presence of the jury, to produce a paper or document containing incriminating evidence against Mm, is a violation of the immunity secured to him by the fifth amendment to the Constitution of the UMted States, providing that no person in any criminal case shall he compelled to he a witness against himself.’ ”
If it he the law, as it clearly is, that the prosecution has no right to make such a demand upon an accused in the presence of the jury before which he is being tried, such demand suggesting that what is sought will he incriminating evidence against the accused, how can it he said that evidence procured in an unlawful manner through the violation of an accused’s constitutional
Because of the error of the trial court in admitting in evidence the whiskey so unlawfully taken from the possession of appellant, the judgment is reversed and appellant granted a new trial. The cause is remanded to the superior court for such further proceedings as shall not he inconsistent with the views herein expressed.
Holcomb, Hovey, Main, and Mackintosh, JJ., concur.