State v. Prescott

117 S.E. 637, 125 S.C. 22, 1923 S.C. LEXIS 222

• Court: Supreme Court of South Carolina
• Decided: May 26, 1923
• Docket: 11240
• Status: Published

Opinions

May 26, 1923. The opinion of the Court was delivered by The record shows:

"This case was commenced by the finding of an indictment against George Prescott and Dave Murphy and Emma Meetze for violation of the prohibition law, and was tried in Richland County on May 24, 1922, and resulted in a verdict of guilty as to the defendant Prescott and the defendant Murphy. After the jury was impaneled and sworn, and before the taking of any testimony in the case, the solicitor in open Court nol. prossed the case against Emma Meetze."

EVIDENCE. "The evidence in the case consisted of the testimony of Emma Meetze, who swore that Prescott, the defendant, had rented a room in her house and had therein stored the whiskey in question. She testified that the room was rented by Murphy but for Prescott, and that when the officers came in Prescott was drawing the whiskey out of a keg and stopping it up in quart jars. That the house in which the whiskey was stored was her house, and was a dwelling house in which she lived."

"The defendant Prescott said he wanted the room to store some things in. I rented to him and gave him the key. I did not see him store the whiskey in the room, because I was not at home. I did not know that there was any whiskey there, until the officers raided the house."

"The witness T.A. Berley, a witness for the State, testified that he was an officer of the law and went to the home of Emma Meetze, a dwelling house, between 12 and 1 o'clock at night, on April 22, 1922, and made therein a search under a warrant."

The testimony was objected to on three grounds, to wit:

The search warrant was insufficient, the house searched was a dwelling house, and the search was in the night, all in violation of the law.

The recent case of State v. Green 121 S.C. 230,114 S.E., 317, shows that the point cannot be sustained. That case holds:

"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."

That is the law of this State and a republication of statements of that case would be unprofitable.

Affirmed.

MR. CHIEF JUSTICE GARY concurs.

MR. JUSTICE MARION, I concur under the authority ofState v. Green, which I think was correctly decided. Unlawful seizures and searches by officers of the law are not to be approved or encouraged by the Courts; but the remedy for official misconduct in that regard does not lie in saying that what is in fact evidence is not evidence, but in the pursuit by the injured party of such remedies as are not provided by law or as should be provided by the lawmaking power.

MESSRS. SEASE, FEATHERSTONE, RICE, BOWMAN, HENRY, DENNIS and JOHNSON, Circuit Judges, concur in opinion of MR. JUSTICE FRASER.