State v. Wansgaard
265 P. 671
Idaho
1928
Check Treatment
*22 BUDGE, J.

Aрpellant was convicted of burglary in the second degree. The information against him was filed May 28, 1927, and the trial commenced Junе 20, 1927. After the jury had been impaneled ’ and sworn, and the prosecuting attorney made an opening statement, defense counsel moved to suppress all evidence obtained by means of two search-warrants, upon the ground that they were illegal and void because the supporting affidavits were made upon information and belief. The motion was argued without the presence of the jury, the sheriff of Blaine county being called as a witness and interrogated with reference to acting under the search-warrants in obtaining certain property from appellant’s residence. On objection interposed by the prosecuting attоrney that the motion to suppress had not been timely made, the motion was denied, and the trial proceeded. Denial of the.motion is assigned as error.

“Objection to the use of evidence claimed to have been illegally obtained and the requеst for its return must be timely made, which means before the trial.” (State v. Dawson, 40 Ida. 495, 499, 235 Pac. 326, and cases cited.) I do not understand State v. Arregui, 44 Ida. 43, 254 Pac. 788, as intending to hold anything to the contrary. In fact, that decision seems to reсognize that the matter must be presented in a timely manner, and concludes that a motion to suppress, made after plea and apparently before the jury had been impaneled and sworn, ‍‌‌​​​​‌​‌‌​‌​​​​‌‌​‌​​‌​‌‌‌‌‌‌​‌​‌‌​​​‌​‌‌​‌‌​​‌‍was timely. While the rule in this state now is that the admissibility of evidencе, otherwise competent and relevant to the issue, may be determined by inquiry as to the legality of a search or seizure under which it might have been obtained, yet *23 the question must be timely raised, “which means before the trial.”

Webster defines “trial” as “the formal examination of the matter in issue in a case before a competent tribunal.” Bouvier adopts the definition of the court in United States v. Curtis, 4 Mason, 232, 25 Fed. Cas. 726: “The examination before a competent tribunal, according to the laws of the land, of the facts put in issue in a cause, for the purpose ‍‌‌​​​​‌​‌‌​‌​​​​‌‌​‌​​‌​‌‌‌‌‌‌​‌​‌‌​​​‌​‌‌​‌‌​​‌‍of determining such issue.” It has been said that the “trial” of a criminal case does not begin until the jury is impaneled and sworn (State v. Jackman, 31 Nev. 511, 104 Pac. 13); and that it commences immediately after they are sworn. (Wagner v. State, 42 Ohio St. 537.)

In the instаnt case, the jury had been impaneled and sworn and an opening statement made by the prosecuting attorney before аny objection was made as to the introduction of evidence obtained under the search-warrants. There can be no question but that the trial had begun, and, unless there were special circumstances to render the rule as to the necessity for timely аpplication for the suppression of evidence, inapplicable, the motion was too late. A relaxation of the rule has been permitted where it is made to appear that the first notice to the accused of a possible violation of his right is during the course of the trial, or where a proper motion had been made before trial and denied. (Gouled v. United Stdtes, 255 U. S. 298, 41 Sup. Ct. 261, 65 L. ed. 647; Amos v. United States, 255 U. S. 313, 41 Sup. Ct. 266, 65 L. ed. 654.) In аttempting to bring himself within the exception, appellant argues that he did not know, or have any reason for knowing, that the articles obtained under the search-warrants would be offered in evidence until after the prosecuting attorney had stated to the jury whаt was intended to be proved and what evidence the state had in support of the charge, and that, accordingly, the motiоn to suppress was made at the first opportunity available to the defense. The facts strongly tend to show that appellаnt does not come within the exception that where a defendant has only learned that the *24 search was illegal at or immеdiately before the trial, and there has been no opportunity to file an objection for the return of the articles seizеd, the court will listen to an objection made promptly after first notice to the accused of the wrongful possession of рroperty unlawfully seized. The search and seizure herein were made on May 24, 1927, and appellant’s wife was present and assisted in the search. A few days thereafter, appellant was arrested, waived preliminary examination on the charge filed аgainst him in the probate court, and ‍‌‌​​​​‌​‌‌​‌​​​​‌‌​‌​​‌​‌‌‌‌‌‌​‌​‌‌​​​‌​‌‌​‌‌​​‌‍was bound over for trial in the district court. Almost a month elapsed before the case came on for trial, and during the interregnum appellant discussed with the sheriff and prosecuting attorney the taking by him of the property from thе cabin of the complaining witness. Surely, appellant knew that the property had been possessed by the officers, and if оbtained by an infringement of his constitutional rights, he should have made more seasonable application for its suppression and return than that interposed after the trial had begun.

The court instructed the jury that there was no evidence to show that the crime charged was committed in the night-time, so as to constitute burglary in the first degree, and that if the jury believed the defendant to be guilty beyond a reasonable doubt, they should find him guilty of burglary in the second degree. It is contended that by this instruction the court took from the jury the right to determinе whether appellant was guilty of first or second degree burglary. Precisely. But a party should have no reason to complain of an instruction distinctly in his favor. Nor did the court make any inference in the instruction that appellant should be found guilty of burglary in the seсond degree, as the instruction plainly left it to the jury first to decide appellant’s culpability beyond a reasonable doubt.

Aрpellant objected to the introduction in evidence of certain records to establish ownership in the complaining witness of the house alleged to have been entered, upon the ground that they were not the best evidence. The *25 statute defining burglаry (C. S., sec. 8400) does not require proof of ownership of the place entered. The ownership ‍‌‌​​​​‌​‌‌​‌​​​​‌‌​‌​​‌​‌‌‌‌‌‌​‌​‌‌​​​‌​‌‌​‌‌​​‌‍of the building was immaterial, exсept for the purpose of affording a means of its identification. (People v. Mendoza, 17 Cal. App. 157, 118 Pac. 964; State v. Mish, 36 Mont. 168, 122 Am. St. 343, 92 Pac. 459.) The allegation in the information that the building entered “belonged” to the complaining witness was doubtless intended to identify the building, so as to apprise appellant of the house he was charged with feloniously entering, and the fact that county records' may have been introduced for the purpose of proving suсh allegation could in nowise be considered as prejudicial error.

The evidence is sufficient to sustain the verdict, and the judgment must be affirmed.

Wm. E. Lee, C. J., and Givens, Taylor ‍‌‌​​​​‌​‌‌​‌​​​​‌‌​‌​​‌​‌‌‌‌‌‌​‌​‌‌​​​‌​‌‌​‌‌​​‌‍and. T. Bailey Lee, JJ., concur.