State v. Newharth, 209 N.W. 542

State v. Newharth

209 N.W. 542 | S.D. | 1926

Lead Opinion

GATES, P. J.

Defendant -was charged with, and convicted of, keeping and storing intoxicating liquor with intent to evade the provisions of the intoxicating liquor law of this state.

The only alleged error that is reviewable -upon tire record is whether the court erred in receiving in evidence certain exhibits. These exhibits were obtained by the officers under an alleged illegal search. A description of them is not contained in the printed *273record, but in that portion of appellant’s brief devoted to the argument they are said to be a pint bottle and a half-pint bottle of intoxicating liquor and a few tin cans with nothing in them, while respondent’s brief describes them as:

“A quantity of alcohol, a large number of bottles and corks, four tin gallon containers containing a few drops of alcohol each and other incidental equipment.”

It is claimed the reception in evidence of these exhibits violated the Fourth Amendment to the federal Constitution and section ii, art. 6, of our state Constitution.

Even if the search was illegal, the exhibits were not thereby rendered inadmissible in evidence. That question is settled for this jurisdiction by the decisions in City of Sioux Falls v. Walser, 45 S. D. 417, 187 N. W. 821; State v. Kieffer, 47 S. D. 180, 196 N. W. 967. It is also to -be noted that a writ of error in the Walser Case was dismissed by the Supreme Court of the United States for want of jurisdiction. Walser v. City of Sioux Falls 263 U. S. 678, 44 S. Ct. 35, 68 L. ed. 502.

The judgment and order appealed from are affirmed.

KNIGHT, Circuit Judge, sitting in lieu of DILLON, J.

Concurrence Opinion

CAMPBELL, J.

(concurring specially). I concur in the result reached ’in the instant case, but prefer to rest my opinion upon the following grounds: The search and seizure was on May 4th, and the trial did not commence until June 9th. Defendant had full knowledge of any claimed illegality from May 4th on, but did not move for the return of the property, nor for the suppression of the same as evidence, nor otherwise proceed in the matter. He then sought to raise, for the first time at the trial, the question of the legality and propriety of the manner of procuring the offered evidence by objecting to the introduction thereof. Under the circumstances of this case, such objection was not timely made, and defendant cannot avail himself thereof.