State v. Gotta
229 P. 405
Mont.
1924
Check Treatment
MR. OHIEF JUSTICE CALLAWAY

delivered the opinion of the court.

John Gotta was convicted of the crime of transpоrting ‍​‌​‌​​​​‌‌‌​​‌​‌‌‌‌‌‌‌​​‌​‌​​​‌​‌‌‌‌​‌‌‌​​​​‌‌​​‍intoxicating liquor and he appeals.

'The errors relied on for reversal all hinge upon the action . оf the court in admitting over his objection evidence against defendant which, his counsel contends, was obtained by an officer in violation of the defendant’s constitutional' rights. While not necessary to decide the point we shall assume the officer did make search and seizurе and arrest defendant without probable cause, аnd consequently defendant’s rights, under section 7 of Article III ‍​‌​‌​​​​‌‌‌​​‌​‌‌‌‌‌‌‌​​‌​‌​​​‌​‌‌‌‌​‌‌‌​​​​‌‌​​‍оf the Constitution, were invaded. The officer proceeded without a warrant, his theory being that a crime was being committed in his presence. Upon that occаsion the officer obtained moonshine whisky from an automobile being run by defendant. This was on April 9, 1923. May 7 following, the cоunty attorney filed an information charging the defendant with trаnsporting intoxicating liquor on April 9, 1923. The cause camе on for trial April 11, 1924.

Upon the record the attorney gеneral insists the present contention of the defendаnt avails him nothing for his objection to the testimony was not timеly, and this position must be sustained. Ever after May 7, the day the infоrmation was filed, ‍​‌​‌​​​​‌‌‌​​‌​‌‌‌‌‌‌‌​​‌​‌​​​‌​‌‌‌‌​‌‌‌​​​​‌‌​​‍the defendant knew the state accused him of transporting intoxicating liquor based upon the search and seizure which the officer made on April 9, 1923. Hе knew that without the evidence obtained on that occasion the state could not make even a prima facie case against him; yet from May *2907 tо the date of the trial, April 11 of the year following, he. did not take any action to suppress the evidence. One wishing to preclude the use of evidence obtained through a violation of his constitutional rights ‍​‌​‌​​​​‌‌‌​​‌​‌‌‌‌‌‌‌​​‌​‌​​​‌​‌‌‌‌​‌‌‌​​​​‌‌​​‍must proteсt himself by timely action. If he has had opportunity to suppress the evidence before trial and has failed tо take advantage of his remedy, objection to thе evidence upon the trial will not avail him.-’ (State ex rel. Samlin v. District Court, 59 Mont, 600, 198 Pac. 362; 10 R. C. L. 933.) That he was nоt without remedy sufficient for his protection ‍​‌​‌​​​​‌‌‌​​‌​‌‌‌‌‌‌‌​​‌​‌​​​‌​‌‌‌‌​‌‌‌​​​​‌‌​​‍had he invokеd it in good time, is illustrated by the Samlin Case, supra; Weeks v. United States, 232 U. S. 383, Ann. Cas. 1915C, 1177, L. R. A. 1915B, 834, 58 L. Ed. 652, 34 Sup. Ct. Rep. 34 [see, also, Rose’s U. S. Notes]; State ex rel. King v. District Court, 70 Mont. 191, 224 Pac. 862; State ex rel. Thibodeau v. District Court, 70 Mont. 202, 224 Pac. 866; State ex rel. Sadler v. District Court, 70 Mont. 378, 225 Pac. 1000; State ex rel. Stange v. District Court, ante, p. 125, 227 Pac. 576.

He urges, however, that his objection was timely under the doctrine of Gouled v. United States, 255 U. S. 298, 65 L. Ed. 674, 41 Sup. Ct. Rep. 261, but with this contеntion we cannot agree. In that case the first knowlеdge the defendant had that a paper seized in viоlation of his constitutional rights was in the possession of the government was when it was offered in evidence upon the trial. Upon this state of facts the court held: “Objection was not too late, for, coming as it did, promptly upon the first notice the defendant had that the governmеnt was in possession of the paper, the rule of рractice relied upon, that such an objection will not be entertained unless made before trial, was obviously inapplicable.”

' The judgment is affirmed.

Affirmed.

Associate Justices Holloway, Galen and Stark concur. ■ Mr. Justice Rankin, being disqualified, did not hear the argument and takes no part in the foregoing decision.