State v. McDaniel

On the twenty-second day of December, 1922, the defendant was a deputy game warden of the state. At that time, two men were on trial charged with having violated the game laws of the state. Two deputy sheriffs of Benton County were also in attendance upon the trial, which was being held at Philomath in said county before a justice of the peace. One of the deputy sheriffs was at the time also chief of police of the City of Corvallis in said county. The defendant, at the time of the trial, delivered to one of the deputy sheriffs warrants for the arrest of the two persons charged with having violated the game laws. In the conversation between the defendant and the deputy sheriff, while delivering the warrants, the latter observed that the defendant was intoxicated. His face was flushed, his overcoat "buttoned up wrong," and his breath was laden with the odor of intoxicating liquor. Thereupon, the deputy sheriff requested the other deputy to observe the condition of the defendant. Whereupon, the other deputy approached the defendant and observed the same indications of intoxication. Immediately afterwards, the defendant left the courtroom and went to his automobile parked in a street of Philomath, a short distance from the building in which the court was being held. Both deputy sheriffs followed the defendant and observed that his manner of walking indicated that he was *Page 214 drunk. The defendant got into the automobile, in which was a woman, and started it. Thereupon, the deputy sheriffs halted him, searched his car, but found no liquor. One of the deputy sheriffs then stated that they would search the defendant, who thereupon jumped out of the car as if to get away, but was intercepted and searched, and a pint bottle about three-fourths full of "moonshine" found in one of his hip pockets and taken from him. The liquor was afterwards analyzed and found to contain more than 30 per cent alcohol. Upon finding the liquor on the defendant, he was formally arrested and a complaint lodged against him in the Justice Court, sitting at Philomath, charging him with the unlawful possession of intoxicating liquor. The deputy sheriffs had no search-warrant nor a warrant for the arrest of the defendant. The trial of the defendant on said charge was set for December 29, 1922. On that day and before the hour set for the trial, the defendant

"filed in said justice court his petition for the return to said appellant of the evidence obtained or pretended to be obtained, upon the ground that the appellant was not under lawful arrest and was not under arrest in any manner or at all, and that said search and pretended seizure was in contravention of the constitutional rights of the appellant. This petition was not opposed by the district attorney of Benton County, Oregon, as to the facts or as to the law applicable thereto, and was confessed by said district attorney. Notwithstanding said petition was confessed by said district attorney, the same was denied by said justice court. Thereafter and prior to the commencement of the trial in the said justice court the said district attorney for Benton County, in consequence of said unlawful search and seizure or pretended seizure, filed in said justice court his motion to dismiss said action, which motion was denied *Page 215 by said justice court, and the cause was then continued on the court's own motion until January 5th, 1923."

On the last-named date, the defendant was convicted in the Justice Court of the crime charged, and an appeal was immediately taken to the Circuit Court for Benton County. Thereafter and before a trial in the Circuit Court, the defendant filed another motion, supported by his affidavit, for the return of the liquor taken from him. This motion was opposed by the district attorney, and, after hearing arguments, the Circuit Court ordered the liquor to be returned. At the trial, the defendant made seasonable objections to all the testimony offered by the state regarding the condition of the defendant at the time he was searched and arrested, the finding of the liquor on his person, the alcoholic contents of the liquor, and all other evidence resulting from the search of the defendant and seizure of the liquor. The objections of the defendant were overruled and exceptions duly saved. The trial resulted in the conviction of the defendant, who was sentenced to pay a fine of $150, and in default thereof, be confined in the county jail of Benton County, Oregon, one day for each $2 of said fine, and further be confined in the county jail of Benton County, Oregon, for a period of twenty days, and to pay the costs and disbursements of the action. The defendant has appealed to this court from that judgment.

The defendant rests his objections to the testimony received over his objections and named above as a violation of his constitutional rights expressed in the fourth and fifth amendments of the federal Constitution, and Article I, Sections 9 and 12 of the Constitution of Oregon. The court's ruling on the admissibility *Page 216 of that testimony is the only error assigned on this appeal.

The deputy sheriffs did not violate either the fourth or fifth amendment to the federal Constitution. Those amendments prohibit either the Congress or federal officers from violating the acts therein forbidden. They do not apply to the state legislatures or officers: Weeks v. United States, 232 U.S. 383, 398 (58 L. Ed. 652, 658, Ann. Cas. 1915C, 1177, 1182, L.R.A. 1915B, 834, 843,34 Sup. Ct. Rep. 341, 346, see, also, Rose's U.S. Notes), where we find this language:

"As to the papers and property seized by the policemen, it does not appear that they acted under any claim of federal authority such as would make the amendment applicable to such unauthorized seizures. The record shows that what they did by way of arrest and search and seizure was done before the finding of the indictment in the federal court, under what supposed right or authority does not appear. What remedies the defendant may have against them we need not inquire, as the fourth amendment is not directed to individual misconduct of such officials. Its limitations reach the Federal Government and its agencies. BoydCase, 116 U.S. 616 (29 L. Ed. 746, 6 Sup. Ct. Rep. 524, and seeTwining v. New Jersey, 211 U.S. 78, 53 L. Ed. 97, 29 Sup. Ct. Rep. 14, see, also, Rose's U.S. Notes)."

To the same effect are the decisions of this court: State v.Laundy, 103 Or. 443, 493 (204 P. 958, 206 P. 290). The decisions of the United States court, applying the provisions of the fourth and fifth amendments to the federal Constitution, are not controlling. The dignity and learning of that court entitles its decisions to most serious consideration when not controlling. The grave question raised by this appeal *Page 217 must be decided by construing Article I, Sections 9 and 12 of our state Constitution.

Was the search of the defendant and the seizure of the "moonshine" discovered on the person of the defendant by the officers, without warrant either for such search or for the arrest of the defendant, a violation of Article I, Section 9, of our state Constitution?

Said Section 9 is as follows:

"No law shall violate the right of the people to be secure in their persons, houses, papers and effects against unreasonable search or seizure; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized."

The inhibition in this section is directed to the legislature. No law is assailed in this appeal. There is no claim that the search and seizure complained of were made by virtue of any unconstitutional statute or law of the state. It is agreed that the search and seizure were both made without warrant. The officers making the search and seizure were acting without a warrant or other writ. There is no claim by the state that the officers were authorized by any order of any court or any law in conflict with said Section 9 of Article I of our state Constitution. If the officers exceeded their authority, they are subject to civil and criminal liability. If the search was unlawful, they were guilty of assault and battery: 2 R.C.L. 526, note 3, pp. 527, 528, notes 15 and 16, p. 529, notes 4 and 5, p. 539, § 18; 5 C.J. 622, note 73, p. 726, § 192, p. 728, § 194. If the search and seizure were unlawful, it was the duty of the district attorney to have caused the arrest of the offending officers, and prosecuted them for their grave offense. The *Page 218 violation of said section is a very serious offense and is so recognized by all the authorities. Its enforcement is not secured by ignoring violations thereof, or by refusing to enforce the law against offenders of other statutes.

The inhibition of said Section 9 is not against all searches but only against unreasonable searches. The presence of a warrant is not the sole test of the reasonableness of a search. A search, with a warrant, may be unreasonable, and without a warrant, reasonable: People v. Milone, 119 Misc. Rep. 22 (195 N.Y. Supp. 488). The authorities are uniform to the effect that any person arrested in a criminal act may be searched by the officers making the arrest, who may seize and retain any property or documents which are evidence of the crime.

In Weeks v. United States, 232 U.S. 383, 392 (58 L. Ed. 652, Ann. Cas. 1915C, 1177, 1180, 34 Sup. Ct. Rep. 341, 344), relied upon by the defendant, we find this language:

"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 partof the Government, always recognized under English and Americanlaw, to search the person of the accused when legally arrested todiscover and seize the fruits or evidences of crime. This righthas been uniformly maintained in many cases. 1 Bishop on Criminal Procedure, § 211; Wharton, Crim. Plead. Practice (8 ed.), § 60; Dillon v. O'Brien and Davis, 16 Cox C.C. 245."

In Youman v. Commonwealth, 189 Ky. 152, 160 (224 S.W. 860,864, 13 A.L.R. 1303, in p. 1309), we find this language:

"But, if a person is lawfully taken into custody, the right to search him and seize articles in his possession is allowed for the purposes before stated." *Page 219

The reference in this excerpt is to the following language in the same page:

"And this broad protection against unlawful search and seizure applies with equal force to the person, and subject to theexception that an arresting officer has the right to search theperson of a prisoner lawfully arrested, and take from his personand hold for the disposition of the court any property connectedwith the offense for which he is arrested that may be used asevidence against him, or any weapon or thing that might enable the prisoner to escape or do some act of violence, it is as great a violation of the constitution for an officer to search a person, or baggage carried about by him, without a warrant authorizing it, as it is to search his premises."

The opinion in Youman v. Commonwealth, above, is the main support and principal authority relied upon by the defendant in this appeal. To the same effect is 5 C.J. 434, § 74, also cited by the defendant. 2 R.C.L. 467, also cited by the defendant, in Section 25, says:

"An officer making an arrest has authority to search the person of his prisoner, even against his will, but a search is justifiable only as an incident to a lawful arrest, and if the arrest is unlawful the search is also unlawful."

Every authority, cited by defendant touching the right of the arresting officer to search the person of his prisoner as an incident to a lawful arrest, sustains that right. If, then, the defendant was lawfully arrested, the search and seizure of the "moonshine" was lawful.

Cooley's Constitutional Limitations (7 ed.), 431-433, cited by defendant, is not in conflict with our view. It is not directly in point, but supports the *Page 220 principle of the right to search the person in the manner ruled by the common law.

Section 1763, Or. L., provides:

"A peace officer may, without warrant, arrest a person, —

"1. For a crime committed or attempted in his presence; * *"

Section 1369, Or. L., defines a crime to be "An act or omission forbidden by law, and punishable upon conviction by either of the following punishments: —

"* *

"2. Imprisonment;

"3. "Fine; * *"

Section 2144 — 1, Or. L., makes it a crime, punishable with both fine and imprisonment, "for any person [this term is sufficiently broad to include a deputy state game-warden] to be drunk in any highway, street or in any public place or building. * *"

Section 2224 — 22, Or. L., makes it a crime "for any person to carry intoxicating liquor to any dance or dance-hall or other public gathering or to have intoxicating liquor in his possession at such dance or dance-hall or other public gathering," also punishable by both fine and imprisonment. It cannot be questioned that a place where court is being held, is a public place, and where court is in session, is a public gathering.

Section 2253 — 1, Or. L., makes it a crime, punishable by both fine and imprisonment, for any person to operate or drive "any automobile, motorcycle or other motor vehicle who becomes or is intoxicated while so engaged in operating or driving such automobile, * *"

It thus appears that when the defendant was arrested he was in the act of committing at least two *Page 221 crimes, namely, unlawful possession of intoxicating liquor, and being drunk in a public place; and was attempting to commit another, namely, driving an automobile while intoxicated. His arrest was lawful, and consequently, the search and seizure were lawful. The officers, whose acts are complained of by the defendant, would have been neglectful of their duty, had they not arrested and searched the defendant. It would have been reprehensible to have permitted the defendant to have driven his automobile in his drunken condition. He would thereby have endangered his own life, the life of the woman in his automobile, and the life of every person on the highways along which he would have driven.

From State v. Laundy, 103 Or. 443, 496 (204 P. 958, 206 P. 290), also cited by appellant, we find this language:

"If the arrest of a prisoner is lawful, a search of the person of the prisoner is lawful; and the officer making such lawful arrest and lawful search may take from the prisoner not only instruments of the crime but also such articles as may be of use as evidence on the trial: Weeks v. United States,232 U.S. 383 (58 L. Ed. 652, Ann. Cas. 1915C, 1177, L.R.A. 1915B, 834,34 Sup. Ct. Rep. 431, see, also, Rose's U.S. Notes); State v.Edwards, 51 W. Va. 220 (41 S.E. 429, 59 L.R.A. 465); 1 Wharton's Criminal Procedure (10 ed.) § 97 et seq.; 2 R.C.L. 469; 5 C.J. 434; 35 Cyc. 1271. The search is justifiable as an incident to the lawful arrest: 2 R.C.L. 197; 5 C.J. 434."

See also in this connection, 1 Bishop's New Criminal Procedure, Section 211.

The contention, that because the officer making the arrest did not say in so many words before searching the defendant that he was under arrest, is too refined to receive serious consideration. It is an attempt *Page 222 to "split hairs on bald facts." It must be conceded that the search, seizure and arrest were all parts of the same act. An officer takes an unnecessary risk when he starts to search a man without first placing him formally under arrest. The arrest should always be made first and the search and seizure made afterward, but incidental thereto. The search and seizure were not less incidental to the arrest, because the officers did not inform the defendant that he was under arrest until after he was searched, but directly in the same connection and at the same time.

Section 1753, Or. L., defines an arrest thus:

"Arrest is the taking of a person into custody, that he may be held to answer for a crime."

It thus appears that when the officers took the defendant into their custody for the purpose of searching him, he was under arrest notwithstanding the officers did not in so many words inform him that he was under arrest. He knew that the men arresting and searching him were officers. But a few minutes before he was taken into custody, he had delivered to one of them warrants for the arrest of men accused of violating the game laws of the state. The men accused of violating the game laws were brought into court for trial having evidently been arrested and brought there without warrants. If the court is going into collateral matters in the trial of defendant, why not inquire into the manner the men, accused of violating the game laws, were brought into court? To propound the question is to answer it. If collateral matters were to be investigated by the courts in the trial of an action, there would be no end to a trial, and justice would be delayed and hindered, if not defeated. *Page 223

Section 1757, Or. L., prescribes the manner of making an arrest as follows:

"An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer."

The defendant was actually restrained by the officers when he was taken into their custody and searched. He was arrested before and at the time he was searched, for he knew that he was restrained by deputy sheriffs, officers authorized to make arrests.

Section 1759, Or. L., prescribes:

"The officer must inform the defendant that he acts under the authority of the warrant, and must also show the warrant if required by the defendant."

This has no application to the instant case because the defendant was arrested while committing a crime in the presence of the officers. They had no warrant. His arrest was nevertheless lawful under the provisions of Sections 1763 and 1769, Or. L. It follows, therefore, logically and necessarily, that defendant was lawfully under arrest when he was searched and the "moonshine" taken from him. All of the evidence objected to by defendant, including the "moonshine," was admissible. What the officers might have done, if no intoxicants had been found, is pure speculation and irrelevant in the instant case. That the defendant was not charged with the commission of one or more of the other crimes of which he was apparently guilty is not material to the disposition of the instant case. None of those questions was raised in the Circuit Court: Opinion of Mr. Justice PIPES rendered November 18, 1924, in Hostetler v. Eccles,112 Or. 572 (230 P. 549). *Page 224

The manner of making the arrest or search neither contributes to nor detracts from the guilt or innocence of the defendant. The guilt of the defendant is the sole issue joined in the trial of defendant. The defendant was in court charged with the commission of a crime. No other issue should have been tried or determined in that trial.

It necessarily follows from the foregoing that all of the evidence objected to was properly admitted into the record. It also logically follows that the Circuit Court erred in making the order directing the return of the "moonshine." It was lawfully seized as an incident to the arrest, and was competent evidence of the crime charged against the defendant. It was the body of the crime itself, and we might truly say, the "spirits" of it.

If A, while walking along a street, met B, who saluted him, asked some question and then passed on; if A, immediately thereafter, missed his watch and knew that he had his watch just before meeting B; if A then turns to follow B and hails an officer requesting the interception of B for stealing his watch; if the officer seizes B and searches him, finds A's watch, and then says that he arrests B, would B be allowed to prevent the use of the watch as evidence against him, or prevent the introduction of testimony of the circumstances surrounding the theft, because the officer did not say, before searching him, "I place you under arrest for stealing A's watch"? We do not believe a respectable authority can be produced to that effect. Those statements are analogous to the facts in the instant case. The fact, that the defendant violated the law prohibiting the unlawful possession of intoxicating liquor instead of the law against stealing from the person, does not change the principle. *Page 225

The recent case of People v. Chiagles, 237 N.Y. 193 (142 N.E. 583, 32 A.L.R. 676, and notes in page 680 and following), is a very illuminating consideration of the principles involved in this case.

The "moonshine" was not offered. The defendant was convicted upon the testimony of witnesses, who saw him, smelled his breath, and observed other indications of his intoxicated condition. These were obvious facts observed by the senses, and by no process of reasoning can it be said that such evidence was secured in violation of Article I, Section 12 of our Constitution. None of these things was testified to by defendant. They were observable and open facts evincing the commission of a crime by defendant, but there was no attempt to compel him to testify against himself. The incidents surrounding the arrest, including the property taken from him, were all lawful evidence and properly admitted: Silverthorne Lumber Co., Inc., v.United States, 251 U.S. 385 (64 L. Ed. 319,40 Sup. Ct. Rep. 182, see, also, Rose's U.S. Notes Supp.); People v.Marxhausen, 204 Mich. 559 (3 A.L.R. 1505-1510, 171 N.W. 557, and cases cited therein), are not in point. They do not involve the search of a person arrested in the commission of a crime.

Mr. Justice BAKER, in United States v. Snyder, 278 Fed. 650, where the accused had been arrested without a warrant on sight of bulging pockets as he stood on the street corner and liquor found in his pockets, says:

"The Fourth Amendment to the constitution contains no prohibition against arrest, search or seizure without a warrant. That was left under the rules of common law."

The sense of smell is sufficient to warrant an officer to enter and search the premises without a warrant *Page 226 and seize the utensils employed in such manufacture: UnitedStates v. Borkowski, 268 Fed. 308, 412; Maples v. State,203 Ala. 153 (82 So. 183).

As to the admissibility of evidence unlawfully obtained, it seems that this court has ruled that such evidence is admissible. The defendant states, in his well-prepared brief, that this appeal has been brought here to settle that question: State v.Laundy, 103 Or. 443, 494 (204 P. 958, 206 P. 290); State v. Ware, 79 Or. 367, 377 (154 P. 905, 188 P. 364); State v. Wilkins, 72 Or. 77, 80 (142 P. 589); State v.McDaniel, 39 Or. 161, 168 (65 P. 520). See, also, in this connection, 1 Greenleaf on Evidence (16 ed.), p. 393, § 254a; 4 Wigmore on Evidence (2 ed.), 626, and §§ 2183-2185, and copious notes; note in 13 A.L.R. 1316, and notes in 3 A.L.R. 1514; 22 Michigan Law Review, 722; 9 American Bar Association Journal, 773. The great majority of states have adopted the same rule. Most of the authorities are collated in 4 Wigmore on Evidence, 632, § 2184. Particular attention is directed to People v.Mayen, 188 Cal. 237 (205 P. 435, 24 A.L.R. 1383); Adams v.New York, 192 U.S. 585 (48 L. Ed. 575, 24 Sup. Ct. Rep. 372, see, also, Rose's U.S. Notes); Resanski v. State, 106 Ohio St. 442 (140 N.E. 370); State v. Pluth, 157 Minn. 145 (195 N.W. 789); Billings v. State, 109 Neb. 596 (191 N.W. 721). Other cases, too numerous to mention, will be found collated and discussed in the cases cited. The most recent case coming to our attention is the case of State v. Godette, 188 N.C. 497 (125 S.E. 24), decided by the Supreme Court of North Carolina, October 29, 1924.

Article I, Section 12, Oregon Constitution, prescribes: *Page 227

"No person shall be put in jeopardy twice for the same offense, nor be compelled in any criminal prosecution to testify against himself."

In the instant case the defendant was not compelled to testify at all. He was called as a witness. A different question would arise if the defendant had been required to produce the evidence. That question is not before the court. The evidence was observed by the officers with their senses. The "moonshine" was taken from the defendant while he was actually restrained, was under arrest, and was retained as evidence of the crime he was committing at the very time he was arrested. Such evidence has always and uniformly been admitted. The case of Youman v. Commonwealth, above, adheres to this rule. That case goes further than any other case toward sustaining the contention of defendant. But it adheres to the rule, not questioned by any authority of which we have knowledge, of the right to retain and use as evidence articles found upon a person when arrested and connected with the charge against the accused. Youman v. Commonwealth, above, did not arise out of a search of a person under arrest. A great deal of what is said in that case is not relevant to the instant case. What is said about search of the person is purely augmentative.

Nor is it necessary that the defendant's guilt be beyond reasonable doubt before an arrest and search be made. It is sufficient if the accused is apparently committing a crime. It is putting the "cart before the horse" to say that the accused must be guilty beyond reasonable doubt before an arrest and search without a warrant. In the very nature of criminal procedure discretion must be left to an officer. "Arrest may be made when there is reasonable grounds of suspicion that he is the offender." 1 Wharton's *Page 228 Criminal Law (10 ed.), 179, note 4. "An officer is justified in arresting a man apparently drunk." 2 Wharton's Criminal Law (11 ed.), 1032, note 7; Commonwealth v. Coughlin, 123 Mass. 436.

What we have written regarding the drunken condition of the defendant is to be understood not as an adjudication of the facts or law in that behalf. That matter is not before the court for adjudication. We have written from the viewpoint of the arresting officers. Peace officers do not adjudicate. They arrest and hold an accused for trial. When they arrest, without warrant, for a crime committed in their presence, they usually become the accusers also. Their function is to bring the accused into court and make a charge against him. They must, in the nature of their duties, act upon probabilities. The accused is entitled to a fair and impartial trial by a court, and is not to be convicted until the accusation is sustained by evidence establishing guilt beyond reasonable doubt. But it is not the duty of the arresting officers to weigh the testimony. They would thus become both accusers and triers. Such a state would be abhorrent to our system of government. If officers, before making an arrest without a writ for a crime committed in their presence, must determine the guilt of the accused in advance, the functions of the courts would be thereby usurped. But that is the logical result of the contention, that because the defendant has not been proven guilty beyond reasonable doubt of having been drunk at the time he was searched, he was, therefore, illegally searched. By such logic a person could never be arrested for committing a crime in the presence of an officer without a warrant. The provisions of our statute, cited above, would be thereby nullified. We do not find that the defendant was drunk at the time *Page 229 he was searched. We do find that there were sufficient indications of his drunkenness to authorize the officers to make the arrest. They did so at their peril.

We are not to be understood as excusing, much less justifying, the search by officers of any person not apparently committing a crime in the presence of officers, or regularly charged with the commission of a crime and a warrant regularly issued for the arrest. Nothing herein written is intended to authorize a search of the person excepting by officers witnessing the commission of a crime, or in executing a warrant of arrest regularly issued by proper authority.

Professor Wigmore, in said Section 2184, on page 689 of 4 Wigmore on Evidence, aptly states the fallacy of the contrary view, as follows:

"Titus, you have been found guilty of conducting a lottery; Flavius, you have confessedly violated the constitution. Titus ought to suffer imprisonment for crime, and Flavius for contempt. But no! We shall let you both go free. We shall not punish Flavius directly, but shall do so by reversing Titus' conviction. This is one way of teaching people like Flavius to behave, and of teaching people like Titus to behave, and incidentally of securing respect for the Constitution. Our way of upholding the Constitution is not to strike at the man who breaks it, but let off somebody else who broke something else."

The only authority relied upon by defendant involving a search of a person is the case of State v. Owens, 302 Mo. 348 (259 S.W. 100), decided February 11, 1924, by the Supreme Court of the State of Missouri, and reported in 32 A.L.R. 383. Paragraph 6 of the syllabus is as follows:

"That intoxicating liquor is contraband because its possession is forbidden by law does not prevent *Page 230 suppression of it as evidence, when it is illegally seized by an officer in searching, without warrant, a person peaceably passing along a public street."

The Supreme Court of Utah announced the contrary rule in a decision rendered November 15, 1923, in State v. Aime,62 Utah 476 (220 P. 704), and also reported in 32 A.L.R. 375. Paragraph 1 of the syllabus reads thus:

"Articles taken from an accused are not inadmissible in evidence against him because taken in violation of the constitutional provisions against illegal search and seizure."

For reasons heretofore given, we think the Utah case announces the better rule. The Utah decision is supported by the weight of authority and is more logical. But even the Missouri case does not support appellant's contention. That case bases its decision upon an illegal search because the defendant was not arrested. The contention of the state in the instant case is that the defendant was lawfully under arrest at the time he was searched. The defendant does not question the authority of an officer to search a person lawfully arrested. Any evidence of a crime found upon a person lawfully arrested is admissible in a trial of the defendant charged with such crime. It is not necessary to the use of such evidence that the arresting officer should have accurately designated to the accused the crime for which he is prosecuted. If the defendant is arrested by an officer for a crime committed in his presence, the prosecutor is not thereby bound to charge the defendant for the identical crime named by the arresting officer. The state has the right to prosecute the defendant for any crime committed by the accused as revealed by the search. Our statutes are controlling *Page 231 on the validity of the arrest. Section 1765, Or. L., prescribes:

"When arresting a person without a warrant, the officer must inform him of his authority and the cause of the arrest, exceptwhen he is in the actual commission of a crime, or is pursued immediately after its commission, or an escape."

In addition to the other crimes being committed and attempted to be committed, heretofore mentioned, the defendant was actually committing the crime of unlawful possession of liquor. The officers were authorized, therefore, to arrest the defendant as they did. They had smelled whisky on his breath; had seen his flushed face, disordered coat and staggering walk. These things indicated that he was intoxicated. In the Missouri case there were no such indications. The court in that case comments on the absence of such indications in the following language:

"The sheriff testified that Owens was not doing anything at the time; he did not know whether he was drunk or sober; did not arrest him for drunkenness; did not place him under arrest at the time he searched him. The charge which was made against him was after the sheriff had searched him and found the whisky. The sheriff did not see or smell any whisky, he had no knowledge of it. * *

"We are not now considering the right of an officer to search a person lawfully arrested, and take from him to be used in evidence against him and to assist in procuring his conviction, any article which may connect him with the commission of a crime. The right is recognized by authorities generally. * * Likewise it is not a case where a misdemeanor is committed in the presence of the officer who makes the arrest, because it is admitted that the defendant was within the peace of the state so far as conduct was concerned, and it was only by the illegal search that his offense was discovered." State *Page 232 v. Owens, 302 Mo. 348 (259 S.W. 100, 101, 32 A.L.R. 383, 384).

In this same case in 302 Mo. 348 (259 S.W. 104, 32 A.L.R. 390), we find the following:

"This question under consideration must not be confused with that arising in cases where a search without warrant under certain conditions is held to be legal and the evidence thereby disclosed admissible for that reason. A great deal of confusion arises by failure to distinguish between cases (where the searchclearly is illegal and where the question turns upon the legality of the search. * *

"Where the actions of a defendant justified an officer in the belief that he was transporting liquor, his search of the defendant's automobile was not unreasonable, although without a warrant. Lambert v. United States (C.C.A. 9), 282 Fed. 413."

Other illustrations are given from adjudicated cases in the opinion in State v. Owens, above, from which the foregoing excerpts are taken. That case was the principal support of defendant's argument at the rehearing. The vice of defendant's argument is in assuming the arrest of defendant to be unlawful because made solely as a result of the illegal search. The defendant's conduct, at the time he was arrested and searched, indicated that he unlawfully possessed intoxicating liquor. The possession of intoxicating liquors is a crime in this state. The information inducing the search was acquired by the arresting officers independently of the search. But for the odor from defendant's breath, his uncomely appearance and staggering walk, no search would have been made. The officers were not required to ignore the evidence of the intoxicated condition of defendant. It was their duty to arrest and search him under the circumstances. They are not required to hold their nose, shut their eyes and stop up their ears *Page 233 in order to avoid observing the evidence of crimes committed in their presence. No authority has been cited by appellant supporting his contention in the instant case. The following excerpt taken from the case of State v. Andrews, 91 W. Va. 720,728 (114 S.E. 257, 260), is quoted in State v. Owens, above, and reads thus:

"That if the knowledge of such evidence is gained from anindependent source, it may be proved like any other facts, but that knowledge thereof gained by the state's own wrong cannot be used in the way proposed in this case."

The search of defendant was legal. The most that can be said in favor of the defendant is that it was not made legally. In other words, defendant may have reason to say that the officers should have announced his arrest before making the search. But the defendant knew that the men arresting and searching him were deputy sheriffs of the county in which he was searched. There was no need for them to inform him. Defendant also knew that he had been drinking and unlawfully possessed liquor. Nothing would have been revealed to him by such an announcement. Under Section 1785, Or. L., the announcement was not necessary because the crime was committed in the presence of the officers making the arrest.

The foregoing reasons compel an affirmance of the judgment. The defendant was apparently drunk at a public gathering, in a public place, and was attempting to commit another crime when actually restrained by the officers. While actually restrained, he was searched. The evidence admitted over the objection of defendant was observed by the officers. That evidence consisted of a series of facts observable by the senses. The "moonshine" itself was *Page 234 taken from the defendant while he was so actually restrained by the officers for committing crimes in their presence. Not only was the testimony of finding the "moonshine" and its alcoholic content admissible, but the "moonshine" itself was admissible under all of the authorities touching the subject and cited by defendant. After the "moonshine" was seized by the officers, the defendant in effect admitted his guilt and said to the officers, file your complaint and he would plead guilty. There is no pretense that he is not guilty. The manner of making the arrest is foreign to the issues involved in the trial. The officers are not on trial for making an arrest wrongfully, nor for false imprisonment. The only and sole issue is the guilt or innocence of the defendant. The conduct of the deputy sheriffs making the arrest, and of the justice of peace in refusing to dismiss the complaint and return the evidence of defendant's guilt procured as it was, should not only not be condemned, but approved cumlaude.

The judgment should be affirmed.

AFFIRMED.

McBRIDE, C.J., and BURNETT, J., concur in the result in this opinion.