State v. . Fowler

90 S.E. 408, 172 N.C. 905, 1916 N.C. LEXIS 443

Opinion

Walker, J.,

after stating the case: The testimony in regard to the number of housebreakings which had recently been committed was incompetent and should not have been admitted by the court. It was irrelevant to the issue, as it did not tend to prove the fact of guilt, and was certainly prejudicial to the prisoner. Nothing could be more harmful than such evidence. It was calculated to inflame the minds of the jurors against the prisoner and to prevent that calm and impartial consideration of his case to which he was entitled. No connection is shown between the alleged crimes and this one, and there is no evidence even that the prisoner had anything to do with the commission of the other offenses. The evidence had no tendency to prove any relevant fact and had the effect only to provoke hostility to him. Underhill on Criminal Ev., sec. 87; S. v. Frazier, 118 N. C., 1257; 12 Cyc., 405; S. v. McCall, 131 N. C., 798; 16 Cyc., 1114; S. v. Jeffries, 117 N. C., 727; Deming v. Gainey, 95 N. C., 528. There are some exceptions to the rule excluding evidence of other distinct offenses, but they need not be discussed, as there is not even any proof here that the prisoner committed any of the other crimes. The evidence was wholly irrelevant and very prejudicial. Its admission entitles the prisoner to another trial.

As to the motion for the surrender of property to the prisoner, we are of the opinion that there was no error in the denial of it by the judge.

First. The property taken from the prisoner’s person at the Union Station came lawfully into the possession of the officers. Numerous housebreakings had been committed in that vicinity and the policemen were on the lookout for the guilty parties. It is clearly inferable from the testimony that they suspected the two men seen by them on the night of the arrest, the prisoner being one of them. Being known officers, charged with the duty of preventing breaches of the peace and with arresting violators of the law, they had the right, on suspicion, to arrest the prisoner without a warrant and take him within a reasonable time, or as soon as they conveniently could do so; before some magistrate authorized to hear the charge against him and to commit or bail him. This they did. It is said in S. v. Belk, 76 N. C., 13, that “A peace officer may arrest without warrant upon suspicion of felony, and for a breach of the peace committed in his presence.” 5 Ruling Cases, sec. 5; S. v. Bryant, 65 N. C., 327; S. v. Shelton, 79 N. C., 605; Neal v. Joyner, 89 N. C., 287; S. v: Campbell, 107 N. C., 948; Brockway v. Crawford, 48 N. C., 433; 3 Cyc., 878. Chief Justice Smith said in Neal v. Joyner, supra: “A constable having reasonable ground to suspect that a felony has been committed is authorized to detain the party suspected until an inquiry shall be made by the proper authorities. And to this effect are the authorities in the absence of controlling legislation,” citing Allen v. Wright, 8 Car. and P., 522; Rohan v. Sawin, 5 Cush., 281; Burns v. Erben, 40 N. Y., 463; Cooley on Torts, 175; Brockway v. Crawford, 48 N. C., 433. There is ample evidence upon which the jury were authorized to convict of the felony, and the principles stated in the above cases show that the officers were within the law when they arrested the prisoner. This being so, the case of Weeks v. U. S., 232 U. S., 383, upon which the prisoner’s counsel so much relied, does not support their position, but rather sustains the view that the property came lawfully into the possession of the officers. In that- case it appeared that the officers acted illegally and in a high-handed and unjustifiable manner, and it was said: “What, then, is the present case ? Before answering that inquiry specifically, it may be well by a process of exclusion, to state what it is not. It is not an assertion of the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases. 1 Bishop on Criminal Procedure, sec. 211; Wharton Crim. Plead, and Practice (8th ed.), sec. 60; Dillon v. O'Brien and Davis, 16 Cox C. C., 245. Nor is it the ease of testimony offered at a trial where the court is asked to stop and consider the illegal means by which proofs, otherwise competent, were obtained — of which we shall have occasion to treat later in this opinion. Nor is it the case of burglar’s tools or other proofs of guilt found upon his arrest within the control of the accused.” It is needless to cite other authority upon this branch of the case.

Second. As to the newspaper clipping, mutilated coin, and any other property taken from the house of Ida Fowler, sister of the prisoner, the ease, if anything, is much stronger for the State. The testimony of the officers — which the court found to be true, having found the facts to be as therein stated — was all to the effect that they were careful not to enter the house without the consent of its owner, and that before they entered they had actually been invited by her to come in, and that, everything done by them after they entered was with the express consent of Ida Fowler and her sister-in-law. They were told by Ida that the house belonged to her, and also the contents of the room in which the search was made. She claimed the money and other property, and consented to an exchange of the mutilated silver coin for one of similar kind and denomination. We do not see how, upon this showing, the case can be brought within the principles declared in Weeks v. U. S., supra,. There the papers were seized in invitum, while here they were taken by the officers with the full consent of the parties having at the time possession of-them with apparent ownership . — a consent that the judge finds from the officer’s testimony was given voluntarily and without the display of any force or compulsion. In Weeks v. U. S., supra, the Court said that where incriminatory documents (or other articles) are found in a lawful search, even where the find is incidental merely to a legal search for other goods; as, for instance, gambling paraphernalia, they may be used as evidence against the accused on a trial of an indictment for the crime to which the documents related, citing Adams v. New York, 192 U. S., 585. The Court further. said, approving in that respect the doctrine as stated in 1 Greenleaf on Evidence, sec. 254a: “It was no- valid objection to the use of the papers that they had been thus seized, and the courts in the course of a trial will not make an issue to determine that question, and many State cases were cited supporting that doctrine. The same point had been ruled in People v. Adams, 176 N. Y., 351, from which decision the case was brought to this Court, where it was held that if the papers seized in. addition to the policy slips were competent evidence in the case, as the court held they were, they were admissible in evidence at the trial, the Court saying: 'The court, when engaged in trying a criminal cause, will not take notice of the manner in which a witness has possessed himself of papers or other chattels, subjects of evidence, which are material and properly offered in evidence. People v. Adams, 176 N. Y., 351; 98 Am. St. Rep., 675; 68 N. E., 636; 63 L. R. A., 406. Such an investigation is not involved necessarily in the litigation in chief, and to pursue it would be to halt in the orderly progress of a cause, and consider incidentally a question which has happened to cross the path of such litigation, and which is wholly independent thereof.’ ” There could not be any objection to the introduction in evidence of the articles found by the officers and voluntarily given up by the two- women who had them in their possession. This was not an illegal search and seizure- within the meaning of the constitutional provision against them. 12 Cyc., 401, so declared, and the text is well supported by the cases cited in the notes. Commonwealth v. Corbin, 143 Mass., 124; S. v. Griswold, 67 Conn., 290 (33 L. R. A., 227); S. v. Van Tassel, 103 Iowa, 6; S. v. Atkinson, 40 S. C., 363 (42 Am. St. Rep., 877).

It was held in S. v. Griswold, supra: “Searching the office of an accused person with the consent and aid of his servant, an agent, who was in possession, in order to obtain evidence against the accused is not in violation of the constitutional provision against unreasonable searches; and the taking away of an article found there, with the consent of the agent, is not a ‘seizure.’ ”

That case would, therefore, seem to be precisely in point and a conclusive authority; if followed, as to both questions raised upon this record. The prisoner based his motion on the fourth, fifth, and fourteenth amendments to the Federal Constitution, and on the Constitution of the State, Art. I, secs. 11, 15, and 17.

With reference to a similar question presented in S. v. Atkinson, supra, the Court said: “The provisions of the Constitution of the United States relied upon are the fourth, fifth, and fourteenth amendments, and the provisions of the Constitution of this State may be found in sections 13- and 22 of Article I. In the fourth amendment of the Constitution of the United States it is declared that ‘The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated,’ etc. In the fifth amendment it is declared that no person ‘shall be compelled in any criminal case to be a witness against himself,’ etc.; 'while in the fourteenth amendment the declaration is: ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,’ etc. In the first place, we do not understand that the limitations imposed by-the fourth and fifth amendments have any application to the powers of the State governments, but apply only to the powers of the Federal Government. As was said by White, C. J., in Spies v. Illinois, 123 U. S., 166: ‘The first ten articles of. amendment were not intended to limit the powers of the State governments in respect to their own people, hut to operate on the National Government alone, wa.s decided more than half a century ago, and that decision has been steadily adhered to since,’ citing numerous cases. Nor can it be said that the fourteenth amendment has the effect of extending the operation of the fourth and fifth amendments to the States; for, as was held in Minor v. Happersett, 21 Wall., 171: ‘The-amendment (speaking of the fourteenth) did not add to the privileges'- and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had.’ And the same-doctrine was held in United States v. Cruikshank, 92 U. S., 542. Besides, the same rights which are guaranteed by the fourth and fifth, amendments to the Constitution of the United States are expressly" declared by sections 13 and 22 of Article I of tbe State Constitution; for in tbe former section tbe declaration is that no person shall ‘be compelled to accuse or furnish evidence against himself/ while the language in section 22 is: ‘All persons have a right .to be secure from unreasonable searches or seizures of their persons, houses, papers, or possessions. The question now presented for'our decision is not whether the persons who found the pieces of paper in the room of the defendant John Atkinson violated any of his legal rights by entering his room without authority, but whether the papers there found could be offered in evidence in this case; for, while it may be possible that it was a technical trespass to enter his room without authority, yet it does not by any means follow that the pieces of paper there found could not be offered in evidence.’ ”

This doctrine as to the competency of writings obtained by illegal means is well stated in 1 G-reenleaf on Ev., sec. 254a: “It may be mentioned in this place that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question.” It was further said in S. v. Atkinson, supra, 42 Am. St. Rep., at p. 884: “There was nothing in the evidence tending to show that the defendants, or either of them, was compelled to furnish these papers, or that they were even asked to do so. Indeed, it seems that neither of the defendants was present, or even knew that the papers were found in the room when they were found; and there can, therefore, be no pretense that the defendants were compelled to furnish these papers as evidence against them.”

So it will be seen that under the authority of those cases there has been no illegal search of his home, or forcible seizure of the prisoner’s property, either from his person or his house, but all the property was obtained by the free consent of those who had charge of the place where they were found, in the case of some of the articles, and, as to the others, they were taken from his person in a lawful manner, as we have shown. The question as to the competency of the evidence is fully discussed and decided in S. v. Wallace, 162 N. C., 622.

The result is that a new trial is ordered because of the admission of improper testimony, and the order of the judge refusing to require the officers to deliver up the property is affirmed.

New trial.