Owens v. State

98 So. 233, 133 Miss. 753, 1923 Miss. LEXIS 188

• Court: Mississippi Supreme Court
• Decided: December 17, 1923
• Docket: No. 23717
• Status: Published

Opinions

ANdeesoN, J.,

delivered the opinion of the court.

Appellant, Ned Owens, was indicted and convicted in the circuit court of Lamar county of possessing á still, and ^sentenced to one year in the penitentiary, from which judgment he prosecutes this appeal.

There was a search for and seizure of the still in this case, and made by an officer without a search warrant. He had a search warrant authorizing the.search of the premises of Lonny Williams. Instead, however, of searching the premises of Lonny Williams, the officer searched the premises of appellant, Ned Owens, and found the still in question. The search warrant authorizing the search of the premises of Lonny Williams was no authority whatever for searching the premises of appellant. We have a case simply where the search and seizure was without a search warrant, and the only evidence of guilt was obtained as the result of such unlawful search and seizure, and therefore, if Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377, and cases following that case are to stand, the trial court should have granted .appellant’s request for a directed verdict. The state, however, assails the soundness of that case, and urges the court to overrule it. It was held in that case, following the supreme court’ of the United States and the courts of several, although a minority, of the states, that evidence secured by the state against a defendant charged with crime in violation of the search and seizure section of our Contsitution could not be used against him, because to do so would violate, not only said section of the Constitution (section 23), but that clause of section 26 securing defendants charged with crime against self-incrimination.

The.judge who, wrote the opinion in the Tucker case may not have been justified in some of the reasons given for the holding of the court. Whether that be true or not, it was the purpose of the court in that case, and it was so explicitly stated in the opinion, to follow the decisions of the supreme court of the United States involving the same question, for the feasons given by that court.

After a most thorough reconsideration of the Tucker case, we decline to overrule it. We believe the rule laid down by the supreme court of the United States and followed in the Tucker case to be the wiser and better rule, although it is the rule of a minority of the courts of this country. The question was.first before the supreme court of the United States in Boyd v. U. S., 116 U. S. 619, 6 Sup. Ct. 524, 29 L. Ed. 747, decided in 1886. It was decided by a unanimous court. Justice BRadley’s opinion in that ease is able and convincing. Among 'other things he said the Fourth and Fifth Amendments to the federal Constitution (corresponding to sections 23 and'26 of our Constitution) were indissolubly connected; that each threw light upon the other; that the unreasonable searches and seizures condemned in the Fourth Amendment were generally made for the purpose of compelling persons to give evidence against themselves, which in criminal cases was condemned in the Fifth Amendment; that the seizure of a man’s private books and papers, to be used as evidence' against him in violation of the Fourth Amendment, was tantamount to compelling him to be a witness against himself in violation of the Fifth Amendment.

This question has in recent years been re-examined by the supreme court, and the principle laid down in the Boyd case reaffirmed in the following cases: Weeks v. U. S., 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652; L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lbr. Co. v. U. S., 251 U. S. 385, 40 Sup. Ct. 182, 64 L. Ed. 319; Gouled v. U. S., 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647; Amos v. U. S., 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. 654. And the view entertained by the supreme court of .the United States has been followed by the states of West Virginia, Kentucky, South Carolina, Iowa, Michigan, Indiana, Washington, and Tennessee in the following cases: State v. Wills, 91 W. Va. 659, 114 S. E. 261, 24 A. L. R. 1398; Youman v. Com., 189 Ky. 152, 224 S. W. 860, 13 A. L. R. 1303; Ash v. Com., 193 Ky. 452, 236 S. W. 1032; Blacksburg v. Beam, 104 S. C. 146, 88 S. E. 411, L. R. A. 1916E, 714; State v. Rowley (Iowa), 187 N. W. 7; People v. Marxhausen, 204 Mich. 559, 171 N. W. 557, 3 A. L. R. 1505; People v. Foreman, 218 Mich. 519, 288 N. W. 375; Callender v. State, (Ind. Sup.), 136 N. E. 10; State v. Gibbons, 118 Wash. 171, 203 Pac. 330; Hughes v. State, 145 Tenn. 544, 238 S. W. 588, 20 A. L. R. 639.

We said iu the Tucker case that the federal supreme court was our greatest exponent of constitutional law. We add now these further observations, with reference to the greatness and independence of that court: Looking over its entire history, it can be truthfully said that it has been independent of party, power, and popularity. It has withstood for more than a century many storms of popular prejudice, some of which would have destroyed it had an opportunity been presented-. The calm judgment of the people, however, has always sustained its decisions. Of its independence, Warren, in his history of the supreme court of the United States, vol. 1, pp. 21-23, said:

“ Thus, judges appointed by Jefferson and Madison did not hesitate to join with Marshall in sustaining and developing the strongly nationalistic interpretation of the Constitution so obnoxious to Jefferson. Judges appointed by Jackson joined with Marshall and Story in supporting the Cherokee Missionaries against Georgia, in flat opposition to Jackson. The whole bench, appointed by Jackson, decided against his policy in relation to the Spanish land claims. Judges appointed by Jackson and Van Burén threw down the gauntlet to the former by issuing a mandamus against his favorite Postmaster General. In every case involving slavery, antislavery judges joined with pro slavery judges in rendering the decisions. The constitutionality of the obnoxious Fugitive Slave Law was unanimously upheld by antislavery Whig judges and by proslavery Democrats alike. A Northern Democrat joined with a Northern Whig judge in dissenting in the Dred Scott Case. President Lincoln’s legal tender policy was held unconstitutional by bis own appointees. The reconstruction policies and acts of the Republican Party were held unconstitutional by a Republican bench. The constitutional views of the Democratic Party as to our insular possessions were opposed by a Democratic judge, who joined with bis Republican associates in making up the majority in the Insular Cases. Multiple other illustrations might be cited. In fact, nothing is more striking’ in the history of the court than the manner in which the hopes of those who expected a judge to follow the political views o'f the President appointing him have been disappointed. While at- various periods of extraordinary partisan passion charges of political motives have- been leveled .at the court, it has been generally recognized, when the storms subsided, that the accusations were unwarranted. In fact, it is one of the safeguards of our form of government that the people recognize that the refusal by the courts to make concessions to expediency or temporary outcry, is required for the protection of the rights of the citizen. ‘Considerate men of .every description ought to prize whatever will tend to beget or fortify that temper in the courts,’ said Alexander Hamilton, ‘ as no man can he sure that he may not he tomorrow the victim of a spirit of injustice by which he may profit today.’ ”

The supreme court of the United States held that the best and most effectual method of forcing the federal government to obey the search and seizure provision of the federal Constitution was to outlaw any and all evidence acquired against a defendant in violation of it. The majority of the state courts hold that the manner of acquiring evidence by the state is not to be inquired into; that the state, through its officials, will he permitted to trample under foot the constitutional guaranty against unreasonable searches and seizures, and use whatever evidence may be thus acquired against a defendant. Which is the better view?- It seems to ask the question is to answer it. How can the state expect its citizens to observe the prohibition amendment to the federal Constitution and the prohibition laws of this state, when the state itself, through its legally constituted officers, is boldly claiming the right to override the search and seizure provision of our Constitution, in order to enforce such prohibition laws. The courts that hold the contrary view simply make ft a foot race between the state on the one hand and violators of the prohibition laws on the other, to see who will be the biggest criminal. The state says to the violator of the prohibition laws, “I should have a right to violate the Constitution in order to prevent you from violating the Constitution.” There can be no effective enforcement of prohibition by means of the state openly and defiantly violating one of the fundamental rights of the citizen. It seems hopeless for the state to expect its citizens to observe the law when the state itself- is a lawbreaker. The stajte is an outlaw. The citizen is an outlaw. Which is to be condemned most? The only way the state can inspire its citizens to observe the law is to obey the law itself. A lawbreaker cannot-successfully enforce the law. It is human nature for man to require those in authority over him to revere and obey the law.

The supreme court of the United States, in order to successfully enforce the searches and seizures provision of the Constitution, declared a rule,- which may be a new rule, but what of it. It had the right to do so. One of its main functions ,is to interpret and construe the federal Constitution, and in doing so it has more than once struck out boldly and declared principles theretofore unknown.

All the counts agree that a confession of guilt, obtained either through force, intimidation, or promise of reward, cannot be used against a defendant in a criminal case, and they also agree that judicial process cannot be had to com-' pel a defendant charged with a crime to produce in court the evidence of the crime. Under this rule the state cannot, by judicial process, compel a defendant charged with a violation of the prohibition laws to produce into court his liquor or still or other evidence of guilt to be used against him. 24 R. C. L., section 25, p. 719; State v. Wills, supra. The relation of client and attorney is a privileged one. TJie attorney acquiring knowledge of the guilt of his client of crime, where such knowledge is acquired by virtue of such relationship, will not be permitted to divulge such knowledge over the objection of the client. The same is true of the relation between physician and patient. The state proceeds on'the theory that the public good will be better subserved by keeping such relationships sacred, even though it may result in the guilty going unpunished. When the state invades the home and possessions of its citizen in violation of the search and seizure provision of the Constitution, what it learns as to the guilt of the citizen of crime ought to be privileged. The state’s mouth ought to be closed forever. It cannot be said with truth that only the guilty complain atra violation by the state of the guaranty to its citizens against unreasonable searches and seizures. The homes and possessions of the innocent have been searched without a search warrant. That is a matter of state history. It is hard- to conceive of an experience more humiliating than that. And furthermore, the wives and children of even the guilty should be considered. The state, before it brings shame and humiliation upon them, should proceed according to the Constitution. And even The guilty are entitled to the protection of the Constitution and laws of the country. Where is the person who has reached the age of maturity who has committed no crime? '

It is argued that the Pringle Case (108 Miss. 802, 67 So. 455) and the Tucker case; are in conflict. There are two most important differences in the two cases. In the Pringle case the incriminating evidence was taken from, the defendant’s person while he was under arrest and in jail; and furthermore the court, in its opinion, states: “It does not appear that appellant objected to the search of his clothing.” The defendant was not under arrest in the Tucker case and did not consent to the search. We have held that a search and seizure could be legalized by consent ; and the courts generally hold that an officer lawfully arresting a person may search his person without further warrant, for the purpose of disarming and obtaining evidence of his guilt. There is no invasion of his person in so doing. The warrant of arrest gives the authority.

It follows from these views that the trial court should have granted appellant’s requests for a directed verdict.

Reversed and remanded.