| N.D. | Dec 8, 1922
Lead Opinion
Statement.
Defendants were convicted of the crime of manufacturing intoxicating liquors. They have appealed from the judgment. The facts are: In February, 1922, the sheriff, the chief of police, and a deputy sheriff visited the home of defendants in Bismarck. They possessed neither a warrant of arrest nor a search warrant. At the door they told the wife of one of the defendants that they desired to see her husband. She stated that she would call him. The officers stated that they would go to see him. They proceeded down in the basement and there they found the defendants manufacturing intoxicating liquor, and there possessed of the instrumentalities so to do. They seized the equipment used in distilling the liquor and also some of the material wherewith the same was manufactured. Defendants were thereupon arrested. At the trial defendants objected to the production of this equipment and its introduction in evidence.
Upon this appeal, defendants contend that the information does not state facts sufficient to constitute a crime .and that the trial court er
Opinion.
The information alleges that defendants committed tbe crime of manufacturing liquor'; that they did wilfully and unlawfully make, ferment, and distill a liquor which was intoxicating for a beverage. Section 10,092, Comp. Laws, 1913, prohibits the manufacture of intoxicating liquor. This section is not violative of the constitutional provision, Section 217, N. D. Const. that no person shall manufacture, for sale or gift, intoxicating liquors. The information states a criminal offense. The officers were not denied admittance within defendants’' home. They were not denied the right to see defendants. - It is true-that they were not invited guests. But, in the basement of their home, they saw defendants in the act of committing a crime. As peace officers it was their duty to arrest defendants, then and there without a. warrant. Comp. Laws, 1913, § 10,567. They did there arrest them and seized the instrumentalities through which the crime was being-committed. The instrumentalities seized were of an evidentiary nature. They were a part of the res gestae in committing the crime. They were properly received in evidence. See note in 18 L.R.A.(N.S.) 253. Even though it should be conceded that the seizure of these instrumen-talities by the officers was unreasonable and violative of defendants’ constitutional rights against unreasonable searches and seizures, § 18, N. D. Const., it does not follow that the testimony of the officers or the introduction, as evidence, of such instrumentalities compels defendants in a criminal case to be witnesses against themselves, § 13 N. D. Const. Wigmore, in his work on Evidence, has elaborately considered the growth, development, and status of the principles established in the constitutional provisions quoted. He states: “It has long been established that the admissibility of evidence is not affected by the illegality of the means through which the party has been enabled to obtain the evidence. The illegality is by no means condoned; it is merely ignored.” § 2183. Otherwise he states, concerning the constitutional provision compelling-one to be a witness against himself, that, “it is not merely compulsion that is the kernel of the privilege, in history, and in the constitutional
Dissenting Opinion
(dissenting). This is an appeal by the defendants from a judgment given on a verdict, finding the defendants guilty of manufacturing intoxicating liquors. The information charging defendants with the commission of the crime is as follows, omitting formal parts: “F. E. McCurdy, state’s attorney in and for said county of Burleigh and state of North Dakota, in the name and by the authority of the state of North Dakota, informs this court, that heretofore, to wit: On or about the 1st day of February, in the year of our Lord, one thousand nine hundred and twenty-one, at Bismarck at the county of Bur-
“That at the said time and place the said defendants did then and there wilfully and unlawfully make, ferment, and distill a liquid which was intoxicating for a beverage.
“This contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of North Dakota. Dated this 3d day of May, A. D. 1921.”
After the filing of the information, the defendants were arraigned and requested to plead to the information. At this time no plea was entered. They instead demurred to the information on the ground that it appeared upon the face thereof that the facts there stated did not constitute a public offense. The demurrer was overruled and defendants entered a plea of not guilty. Thereafter the action was tried to the court and a jury and upon evidence introduced by the state, the defendants not introducing any evidence, but moving for a dismissal at the close of the state’s testimony, the defendants were found guilty and thereafter sentenced to fine and imprisonment. The sentence of Pearlie Pauley being suspended. A motion for a new trial was made and denied. The defendants assign three errors.
(1) That the court erred in overruling defendant’s demurrer to the information.
(2) That the court erred in admitting any evidence of the sheriff of Burleigh county, his deputies, the chief of police and other police of the city of Bismarck, in said county.
(3) That the court erred in certain of its instructions of the jury.
. Considering the first assignment, it is claimed by appellants that under § 218 of our Constitution the manufacture and importation of intoxicating liquor, unless for sale or gift, is not a crime under existing law at the time of the arrest and conviction. The laws in force at the time of the arrest and conviction were the fundamental law, § 217 of the Constitution and § 10,092, Comp. Laws, 1913. Section 217 provides: “No person, association, or corporation shall within this state, manufacture for sale or gift, any intoxicating liquors, and no person, association, or corporation shall import any of the same for sale or gift,
Section 10,092 Comp. Laws, so far as material here, provides: “Any person, association, or corporation, who shall within tbis state, directly or indirectly manufacture any spirituous, malt, vinous, fermented or other intoxicating liquor, or shall import any of the same for sale or gift, as a beverage, or shall keep for sale or sell or offer for sale or gift, barter or trade, any of such intoxicating liquors as a beverage, shall for the first offense be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than two hundred nor. more than one thousand dollars, and be imprisoned in the county jail not less than ninety days nor more than one year; and for the second and every successive offense, shall be deemed guilty of a felony and be punished by imprisonment in the penitentiary not exceeding two years and not less than one year.”
The information charges only the manufacturing of intoxicating liquors and not the manufacture for sale or gift. It is the contention of defendants that whereas § 211 defines the crime as the manufacture for sale or gift and the information charges only the manufacture, that hence, the defendant is not charged with any crime defined in § 211. It may be admitted in order to arrive at a clear conception of defendant’s contention, that the information does not charge them with any crime defined in § 217. If this be true, it is then equally clear that § 217 is in no way contravened by the charge contained in the information, hence, in this respect no constitutional question arises. But, notwithstanding such concession, that does not of itself show the information is bad. In short, though the information does not charge any crime under § 217, and if there were no other law to measure its legality than that section, it might be objectionable and perhaps demurrable on the ground claimed. We have no hesitancy, however, in stating that such is not the case. We believe the view is generally accepted, that the legislature has unlimited power to act in its own sphere, except where inhibited by the Constitution of the United States or the Constitution of this state. Taking this for granted, the legislature could enact any law which to it appeared wise, prohibiting the manufacture, sale or gift
Under appellants’ second assignment of error, it is contended that the court erred in admitting in evidence over defendants’ objection cértain property taken from the dwelling house of the defendants by the sheriff of Burleigh county or his deputies, the chief of police of the city of Bismarck or other policemen of that city, and in receiving their evidence and that of other witnesses who obtained evidence by search and seizure in the dwelling house of defendants in the nighttime without having a warrant of ax*rest for the defendants, and without having a search warrant authorizing entry and search of the dwelling house. In other words, that the acts of such officers and the offering and receiving of such evidence at the trial, violates defendants’ constitutional rights secured to them under §§ IS and 13 of the state Constitution. The evidence so offered and received consisted of various utensils and instrumentalities which the officers or some of them'took from defendants’ home and which they claim to have been used by the defendants in the distillation of intoxicating liquors in their home or dwelling-house.' It is also clear from a full consideration of the evidence, that none of the officers were invited to or into defendants’ home. The evidence clearly shows that it was the purpose of the officers to go to the home and enter and invade it for the purpose of determining whether
Section 18 of the Constitution 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 oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.”
Section 13 of the Constitution provides: “In criminal prosecutions in any court whatever, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf; and to appear and defend in person and with counsel. No person shall twice be put in jeopardy for the same offense, nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law.”
Under the evidence and in the circumstances of this case, the entry by the officers and each of them upon the premises and into the home of the defendants, without a warrant for their arrest or for the arrest of either of them, without a search warrant, with no order or command from any court and with no authority whatever under our laws and Constitution, for the sole purpose of searching for and seizing intoxicating liquors and to discover if the same were manufactured in the home, was a wanton trespass and a direct and flagrant invasion of the constitutional rights of the defendants, who were occupying the premises as a home, guaranteed by § 18 of our Constitution. It is not necessary to elaborate this statement; it is true and can in no way be controverted by this record. The conclusion which we have reached in this respect, we believe, is sustained by the following cases: Boyd v. United States, 116 U.S. 616" court="SCOTUS" date_filed="1886-02-01" href="https://app.midpage.ai/document/boyd-v-united-states-91573?utm_source=webapp" opinion_id="91573">116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 624; Ex parte Jordan, 96 U.S. 727" court="SCOTUS" date_filed="1878-05-13" href="https://app.midpage.ai/document/ex-parte-jackson-89759?utm_source=webapp" opinion_id="89759">96 U. S. 727-733, 24 L. ed. 877, 879; Bram v. United States, 168 U.S. 532" court="SCOTUS" date_filed="1897-12-13" href="https://app.midpage.ai/document/bram-v-united-states-94782?utm_source=webapp" opinion_id="94782">168 U. S. 532, 42 L. ed. 568, 18 Sup. Ct. Rep. 183; Weeks v. United States, 232 U. S. 390, 58 L. ed. 652, L.R.A.1915B, 834, 34 Sup. Ct. Rep. 341, Ann. Cas. 1915C, 1177; Entick v. Carrington, 19 How. St. Tr. 1029; People v. Marxhausen, 204 Mich. 559" court="Mich." date_filed="1919-02-18" href="https://app.midpage.ai/document/people-v-marxhausen-7950359?utm_source=webapp" opinion_id="7950359">204 Mich. 559, 3 A.L.R. 1505, 171 N. W. 557. Endless authority might be cited to the same effect. The cases in the United States Supreme Court just cited, principally had under con-
Construing the 4th amendment of the Federal Constitution, Mr. Justice Bradley delivered the opinion of the court in Boyd v. United States, supra, and after quoting from the celebrated judgment of Lord Camden in Entick v. Carrington, 19 How. St. Tr. 1029, said: “The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employees, of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors and rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property where that right has never been forfeited by his conviction of some public offense. It is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden’s judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man’s own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods is within the condemnation of that judgment. In this regard the 4th and 5th amendments run almost into each other.”
Mr. Justice Day, in Weeks v. United States, said: “The effect of the 4th amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and
It is so clear that the constitutional right of defendants under § 18 of our Constitution has wholly been invaded that further discussion could make it no more clear. But it is contended, that though the officers violated the defendants’ constitutional rights in the manner of procuring the evidence, that is, the utensils and instrumentalities claimed by them to have been used by defendants, in the manufacture of the alleged intoxicating liquor, nevertheless it properly could be used against the defendants to secure their conviction and offered as competent evidence at the time of the trial, unless prior to the time of the trial defendants had applied to the court for a return of the evidence on the theory that it was their property and unconstitutionally had been taken from them, and this on the asserted principle that the court when engaged in trying a criminal cause will not take notice of the manner in. which witnesses have possessed themselves of papers or other articles of personal property which are offered in evidence against the party accused of crime. This principle was announced in the case of People v. Adams, 176 N.Y. 351" court="NY" date_filed="1903-11-10" href="https://app.midpage.ai/document/people-v--adams-3588018?utm_source=webapp" opinion_id="3588018">176 N. Y. 351, 63 L.R.A. 406, 98 Am. St. Rep. 675, 68 N.E. 636" court="NY" date_filed="1903-11-10" href="https://app.midpage.ai/document/people-v--adams-3588018?utm_source=webapp" opinion_id="3588018">68 N. E. 636, and affirmed by the United States Supreme Court in Adams v. New York, 192 U.S. 585" court="SCOTUS" date_filed="1904-02-23" href="https://app.midpage.ai/document/adams-v-new-york-96015?utm_source=webapp" opinion_id="96015">192 U. S. 585, 48 L. ed. 575, 24 Sup. Ct. Rep. 372. It is a principle that has been recognized by not a few decisions of various courts. In the Adams Case the officers were armed with a search warrant. "Where there is a search warrant, and in executing it there is incidentally discovered evidence which may be competent in certain respects, that is a different case than where the home is invaded without any search warrant and all of the evidence is obtained by such unlawful invasion. But upon what principle do those decisions rest which assert that the court when engaged in trying a criminal cause will not
Does not tbe court in sucb case determine tbe manner whereby tbe officers became possessed of tbe confession of tbe accused? We are convinced that in such case it is tbe general rule that tbe accused would have a perfect right to show all tbe circumstances and conditions surrounding tbe making of tbe confession, and if be succeeds in showing that it is not voluntary and free from tbe elements above mentioned, upon objection, tbe confession will be excluded on tbe ground that it violates bis constitutional right of not being compelled to be a witness against himself, which right and oilier personal rights are secured him by § 13 of our Constitution. So in tbe case before us, we think on the trial it was proper for tbe defendants to show by their objection to it, that tbe evidence offered was obtained in violation of their constitutional rights under §§ 13 and 18 of our Constitution, and that to deny them tbe privilege of making that showing or tbe overruling of their objections to tbe reception of tbe evidence to which sucb objections relate, operated to deny them their constitutional rights and was prejudicial and reversible error. One of tbe principal functions of trial courts is to determine competency and admissibility of evidence when offered and under our law no preliminary applications, motions or petitions to it before tbe time of tbe trial are required, before it is incumbent upon it to so determine. Tbe constitutional rights of persons accused of crime cannot be denied on any such theory. This case is not one where a person has been legally arrested and then bis person searched to discover and seize tbe fruits or evidence of crime and it is not governed by any sucb rule as may be proper in that kind of case. Here tbe defendants’ house and home was just as effectively broken into in tbe manner tbe evidence shows tbe entry was made, as if tbe doors bad been closed and locked and tbe windows likewise and by force of tbe officers were broken in and tbe entry into tbe home thus effected, and this, without a warrant of arrest or one of search and seizure. Tbe evidence offered Avas gotten in the manner and by this flagrant violation of defendants’ constitutional rights. If tbe officers can lawfully do what they did in this case, they can with no more right, reason or authority break into any home in the state on any pretext at any time, day or night, without any reference to tbe sanctity of the home or tbe constitutional
In view of the conclusion at which we have arrived, it is unnecessary to give any attention to the 3d assignment of error, based upon the claim that certain of the instructions of the court were erroneous. The judgment appealed from should be reversed and the case remanded for further proceedings.
Dissenting Opinion
(dissenting). In the main I do concur in the opinion as written by Mr. Justice Grace. This is a case of turning water into wine. It presents two questions; one on the complaint; the other on the evidence and the misconduct of the officers of the law. To secure .conviction the officers committed a greater offense than that charged against the defendant. They obtruded themselves into his home, made searches, arrested him and seized some of his property which was offered in evidence against him. The officers should have known and respected the sacred and constitutional right of every man to be secure in his home and property against any such search and seizure. The complaint or information is that the defendant “did make, ferment and distill a liquid which was intoxicating for a beverage.” It does not state an offense under the prohibition section of the Constitution, which is that no person shall manufacture for sale or gift any intoxicating liquors. § 211. It does state an offense under the statute which forbids the manufacture of intoxicating liquor for any purpose. § 10,092. But that statute is in direct conflict with the first section of the Constitution.
“All men have a right do acquire and possess property and to pursue and obtain safety and happiness.”
And what of civil liberty? It is natural liberty restrained by law so far as may be necessary to protect the members of society. On his lonely island Bobinson Orusoe had the full enjoyment of natural liberty.
“He was monarch of all he surveyed;
Ilis right there was none to dispute.”
But when his good man Friday came upon the island, then came some restraint of natural liberty. For in every assembly of two, three, or more persons the law of civil liberty prevails. Every person must refrain from injury to another by force, fraud, deception, overreaching, sharp practices, sharp bargains, and otherwise. Manifestly the law of civil liberty did not bar Bobinson Crusoe from his natural right to make and use wine and strong drink. "When such a right is used inoffensively, it is" natural and inherent just the same as the right to drink tea or coffee. To deny it by force and power is sheer tyranny and despotism. The right is fully assured by the first section of the state Constitution. Any person for his own use may grow and obtain grapes, hops, malt, barley, corn, wheat and use the same inoffensively to make wine, beer, or strong drink. He may “drink and forget his sorrows and remember his poverty no more” But as a member of society he must observe the proprieties of life. He must not appear in a nude or drunken state, like Noah after the flood. Such is the law and
A different topic is the tyranny of the statute and its drastic enforcement. Since the fugitive slave act there has not been another statute so drastic and so questionable. It is strictly a crank statute. It does violence to the plain letter of the Constitution. It imposes excessive fines and unusual punishments. For turning grape juice or water into wine, the very thing that was done by Jesus Christ, the penalty is equal to that for a horse thief, and the expense of the crusade, the reckless destruction of life and property and the incentive to crime — all that is a fearful menace to the state. Surely it is time for decent, honest people to stop and think.
The judgment should be to dismiss the action.