For the reason that I cannot bring myself to the conclusion reached by the majority of my brethren, I dissent in this case, and shall briefly set forth my reasons for so doing.
The majority opinion declares section 3, chapter 244, Acts of 1924, making competent the testimony of any lawful officer, and permitting the introduction as evidence of any intoxicating liquors or any still or appliances used in the manufacture or transportation of intoxicating liquors, in the trial of any criminal case involving the prohibition laws of this state, whether procured by such officer by virtue of a search warrant or not, to be unconstitutional and void.
I am not unmindful of the announcemet by this court in theTucker case, 128 Miss. 211, 90 So. 845, 24 A.L.R. 1377, rendered prior to the enactment of said section. Nor am I unmindful of the announcement by a divided court in the case ofOwens v. State, 133 Miss. 753, 98 So. 233, and I do not now intend to incorporate in this dissenting opinion all of the arguments which are written in the jurisprudence of our country in favor of upholding this statute, but shall content myself with a partial citation of authorities, deeming it unwise to incumber the record with a lengthy statement of conceded principles recognized by the bench and bar as having long since been settled; for instance, that the courts of the land have a right to construe legislation in the light of the Constitution, and, if the courts find beyond reasonable doubt that a statute violates the fundamental law, to so declare; that the search and seizure sections of the Constitution of the United States and like sections of our own Constitution are wise and beneficent, and are designed to protect the citizen from unlawful searches and seizures, and designed to protect him from being forced to testify against himself in any criminal prosecution. These matters are not subject to debate, and, so far as I am concerned, I cheerfully *Page 211 and gladly will go the limit in the enforcement of the individual rights of citizens from unlawful and unwarranted interference in the light of these wise and beneficent sections of our national and state Constitutions.
A brief study of the decisions of the courts of our land reveal to me that thirty-five of the forty-eight states have held that there is no intimate connection between the proposition that a man may not be forced to give evidence against himself, and an unwarranted search and seizure, and, as contended for here, that the testimony of an officer, acting unlawfully as to what he saw and heard while engaged in an unlawful trespass, without any warrant, should thereby and because thereof be rendered incompetent.
In support of the proposition which I conceive to be the law, that evidence otherwise relevant and material will not be rendered inadmissible because illegally obtained, I cite the following cases holding to the rule stated: Alabama — Banks v.State, 207 Ala. 179, 93 So. 293, 24 A.L.R. 1359. Arizona —Argetakis v. State, 24 Ariz. 599, 212 P. 372. Arkansas —Benson v. State, 149 Ark. 633, 233 S.W. 758. California — not cited. Colorado — Sullivitch v. People, 71 Colo. 376, 206 P. 789. Connecticut — State v. Reynolds, 101 Conn. 224,125 A. 636. Delaware — State v. Chuchola (Del. Gen. Sess.), 120 A. 212. Idaho — State v. Anderson, 31 Idaho, 514, 174 P. 124. Iowa — State v. Tonn, 195 Iowa, 94, 191 N.W. 530. Kansas —State v. Turner, 82 Kan. 787, 109 P. 654, 32 L.R.A. (N.S.) 772, 136 Am. St. Rep. 129; Louisiana — State v. Davis,154 La. 405, 97 So. 590. Maine — State v. Chorosky, 122 Me. 283, 119 A. 662. Maryland — Lawrence v. State, 103 Md. 17,63 A. 96. Massachusetts — Com. v. Wilkins, 243 Mass. 356,138 N.E. 11. Michigan — People v. Kamhout, 227 Mich. 172,198 N.W. 831. Minnesota — State v. Pluth, 157 Minn. 145, 195 N.W. 789. Nebraska — Billings v. State, 109 Neb. 596, 191 N.W. 721. New Hampshire — State v. Agalos, 79 N.H. 241, 107 A. 314. New Jersey — State v. Eldredge, 118 A. 242. New Mexico — State v. *Page 212 Barela, 23 N.M. 395, 168 P. 545, L.R.A. 1918B, 844. New York —People v. Esposito, 118 Misc. Rep. 867, 194 N.Y.S. 328. Nevada — State v. Chin Gim, 47 Nev. 431, 224 P. 798. North Carolina — State v. Godette, 29 N.C. 210; State v.Simmons, 183 N.C. 684, 110 S.E. 591. North Dakota — State v.Dinger (N.D.), 199 N.W. 196. Ohio — Rosanski v. State,106 Ohio St. 442, 140 N.E. 370, Oregon — State v. Goldstein,111 Or. 221, 224 P. 1087. Pennsylvania — Com. v. Klein, 81 Pa. Super. 55. South Carolina — State v. Maes, 127 S.C. 397,120 S.E. 576. South Dakota — City of Sioux Falls v. Walser,45 S.D. 417, 187 N.W. 821. Texas — Rippey v. State,86 Tex.Crim. 539, 219 S.W. 463. Utah — State v. Aime, 62 Utah, 476, 220 P. 704, 32 A.L.R. 375. Vermont — State v. Krinski, 78 Vt. 162, 62 A. 37. Virginia — Hall v. Commonwealth, 138 Va. 727, 121 S.E. 154. Washington — State v. Basil, 126 Wn. 155, 217 P. 720.
In the cases supra the very question raised here in the instant case was presented to these courts, and these cases uphold the constitutionality of a statute such as we have under consideration here. I shall not undertake to burden the record with a review of each of these cases, and shall only notice a few of them in order to show how this this question is viewed in other jurisdictions.
In Venable v. State, 156 Ark. 564, 246 S.W. 860, the supreme court of Arkansas held in effect that where dynamite procured by conspirators for sabotage was seized on private premises under a warrant alleged to be defective, the evidence of what the officers saw and heard was admissible, even if they had no warrant at all.
In People v. Mayen, 188 Cal. 237, 24 A.L.R. 1383,205 P. 435, the supreme court of California said: "It must be admitted, then, that the search and seizure was unreasonable and unlawful. . . . The trespass committed . . . and the subsequent use of the [seized articles] in evidence . . . were in legal effect entirely distinct transactions with no necessary or inherent relation to each other." *Page 213
And the evidence was held to be properly admitted.
In State v. Reynolds, 101 Conn. 224, 125 A. 636, from the supreme court of Connecticut, the officer took a bottle of whisky from the pocket of a restaurant keeper, and the court held, with reference to the admissibility of the whisky and the testimony of the officer, that the same was competent, notwithstanding section 9, art. 1, of their state Constitution, in effect the same as ours citing an abundance of authority. Among other things, the court said: "The accused was not compelled by the court to give evidence against himself. All that the court did was to admit in evidence an article taken from the accused, together with a statement of the circumstances surrounding the taking. It was all admissible evidence unless it should have been excluded until the court had ascertained whether it had been obtained illegally, and thereupon to have permanently excluded it."
Then cites the case of State v. Flynn, 36 N.H. 64, and quotes with approval from the opinion in that case the following: "The information thus acquired is not the admission of the party, nor evidence given by him, in any sense. The party has in his power certain mute witnesses, as they may be called, which he endeavors to keep out of sight, so that they may not disclose the facts which he is desirous to conceal. By force or fraud access is gained to them, and they are examined, to see what evidence they bear. That evidence is theirs, not their owners. SeeShields v. State, 104 Ala. 35, 16 So. 85, 53 Am. St. Rep. 17."
In the case of State v. Reynolds, supra, the court further said: "To hold otherwise is to find, as Tucker v. State,128 Miss. 211, 90 So. 847, 24 A.L.R. 1377, forcibly expresses it, an identity between compelling a witness to speak and using in evidence material taken from him by force or fraud. To use there is no such similitude. The wrong done by the taking is to the rights of the accused and to the cause of justice; neither can be properly protected save by a remedy in a direct proceeding. In a collateral *Page 214 proceeding the court is without power to improvise a remedy to enforce the rights of either the accused or the state for a wrong not before the court. . . . Sound public policy forbids the exclusion of evidence, otherwise admissible, though illegally obtained. When evidence tending to prove guilt is before a court, the public interest requires that it be admitted. It ought not to be excluded upon the theory that individual rights, under these constitutional guaranties are above the right of the community to protection from crime. . . . The burden ought not to be added to by giving to our constitutional guaranties a construction at variance with that which has prevailed for over a century at least."
In concluding the Connecticut court, having reviewed the numerous authorities, asks and answers the question raised by the majority opinion inferentially as follows (101 Conn. 238, 125 A. at page 640):
"If the question recurs, Where is the accused's remedy? The answer must be, by a civil action, the only form of remedy known for the protection of the individual against a trespass. It may be that the officer would be guilty of a contempt. If violations of these constitutional rights shall multiply, undoubtedly the General Assembly can provide for a penalty for subsequent violations. A penalty upon an officer for an illegal search made without reasonable ground would furnish adequate protection against such a public wrong. The creation of such a crime must be left to the legislative department of government. No such crime exists under our common law."
In State v. Chuchola, 120 A. 212, the court of general sessions of Delaware held, in a case where the police without warrant searched defendant's residence and seized liquor, that such seizure is illegal and the officer making it might be punished for his unlawful act; held that the liquor seized was admissible as evidence, even though illegally secured, and said: "We do not believe the Constitution makers meant to be so solicitous for the interests of a person accused of crime as to exclude from the jury, *Page 215 not only the evidence of his guilt, but the thing, the possession of which constitutes his crime."
In the case of Commonwealth v. Wilkins, 243 Mass. 356,138 N.E. 11, where liquor was taken from defendant's person by an officer acting without any kind of warrant, the court said: "Courts do not impose an indirect penalty upon competent evidence because of illegality in obtaining it. . . . Whether he commits a crime or a civil wrong, the offending officer alone is responsible. . . . The wrong committed in seizing the liquor without a warrant was a transaction by itself. It has no necessary connection with its subsequent use as evidence. . . . Courts commonly do not concern themselves with the adjustment of property rights between wrongdoers contending as to possession of that which the law does not recognize as innocent and innocuous. The law leaves the parties where they put themselves."
In People v. Esposito, 118 Misc. Rep. 867, 194 N.Y.S. 326, where a policeman saw the defendant look furtively at him, and the policeman advanced toward defendant, who moved away, followed by the officer, and the defendant increased his gait as the officer increased his, until the officer finally ordered the defendant to throw up his hands, and, feeling something hard in defendant's pocket, removed a loaded revolver which was being carried by defendant in violation of their statute. The court held that the arrest was lawful for the commission of a crime in the officer's presence and said further:
"But, if it were conceded and and indisputable that the officer's acts were utterly without justification and constituted unlawful search and seizure, forbidden by the civil rights law (Consol. Laws, chapter 6, section 8), the evidence disclosed thereby is nevertheless available, if produced on the trial, for use in maintaining this prosecution. . . . Courts exists to accomplish justice in the actual world of living human beings, and in such accomplishment it is indispensable to find the truth; therefore the rules of evidence generally sanction the pursuit of *Page 216 truth whereever it may be found and from whatever sources it may be available."
I have cited cases sustaining my contention from the courts of thirty-five states; a majority of the cases being liquor cases, there being no material difference in the sections of the several Constitutions. A majority of the circuit courts of appeal of the United States have held to this same view.
The Boyd case and other cases cited in the majority opinion do not, in my judgment, approach the question here under review when we consider that in the state of Mississippi a defendant has no property rights in whisky or other intoxicating liquors. Intoxicating liquors are contraband in this state. One who has intoxicating liquors in his possession is violating the law, and, in my opinion, the supreme court of the United States will not apply the rule announced in the Boyd case, as to the use of private papers as evidence, to a case like the one at bar, where the defendants have the liquor in the presence of the officer in violation of our statute.
I cannot bring myself to believe that I could be warranted in following cases not directly in point, few in number comparatively, as against the overwhelming weight of authority that such evidence is admissible though unlawfully obtained. Aye, I must go further and say that I believe beyond a reasonable doubt that all these appellate jurisdictions, dealing directly with the very question here under review and being directly in point, are mistaken, and that the case of Boyd v. UnitedStates, and other cases cited, not directly in point, and not dealing with a contraband article unlawfully seized, are correct. I do not believe the reasoning is sound as advanced by the majority opinion, nor do I believe that there is any danger to the citizen from ruthless officers comparable to the danger and menace to organized society if we permit the criminal to sit in the witness chair and testify as a witness in the very presence of the products of his crime, and seal the lips of the officer chosen by our law. *Page 217 It does not appear to me to be right. It does not appear to me to be a sound construction of sections 23 and 26 of our Constitution. It does not appear to be in harmony with reason and logic, and I cannot subscribe to it nor allow it to go to record without entering this expression of my views.
Chief Justice SMITH desires me to say that he concurs in the views herein expressed.