On Rehearing.
[En Banc. May 10, 1923.]
Bridges, J.We adhere to the views expressed by us in the Department decision, and approve of the disposition there made of this case.
Inasmuch, however, as the case has been presented to the whole court, we deem it advisable to elaborate somewhat on the question of the admission in evidence of articles seized by the police officers. In this case, the facts were that the intoxicating liquor which was offered in evidence by the state had, with the knowledge of the defendant, been taken by the police officers some months before the trial. When the case was called for trial, and immediately before the jury was made up, the appellant moved the court to refuse to receive the liquor in evidence for the reason that it had been unlawfully seized by the police officers without any search warrant. This motion was supported by appellant’s affidavit, and at the same time he offered to prove the unlawful seizure. The court refused to hear this mo*462tion because it had not been seasonably and timely made. At the trial, the liquor was offered in evidence by the state and received over the objection of appellant. There was nothing in the state’s evidence to indicate that the liquor had been unlawfully seized.
In discussing this question, the Department decision says:
“When a case of this character is called for trial, the court is not required, at that time, to try out and investigate .the circumstances under which the liquor was taken, to determine whether it was admissible in evidence.”
Questions of this character generally arise under one of the three following circumstances:
(1) Where, by the direct or proper cross-examination of the state’s witnesses, it is made to appear, or it is otherwise admitted, that the articles which are offered in evidence were unlawfully seized. Under those circumstances, it is the duty of the trial court, upon objection, to refuse to receive them in evidence. No question of fact exists under these circumstances. The court is only called upon to rule on the admissibility of evidence upon admitted or conceded facts. It is not required to stop in the midst of the trial and try a collateral fact.
(2) Where, during the trial, the seized articles are offered in evidence, and it does not appear from the state’s testimony, or otherwise, that such articles were unlawfully seized, and objection is made to the introduction of such evidence, on the ground that it was unlawfully seized, and the defendant offers by affidavit, or otherwise, to prove such unlawful seizure, the court should receive the articles in evidence, because it will not, at that stage of the proceedings, stop to investigate the disputed circumstances under which the ar*463tides were seized. If, under these drcumstances, the defendant desires to suppress, as evidence, the articles taken, he must, within a reasonable time before the case is called for trial, move for such suppression, and thus give the court an opportunity to separately try out this disputed question of fact. One exception to this rule would be— .
(3) Where, during the trial of the case, the defendant objects to the receiving of the articles in evidence, on the ground that they had been unlawfully seized, and offers to prove such unlawful seizure, and to further prove that, by the exercise of reasonable diligence, he could not before have learned that the articles had been unlawfully seized, the court should stop in the trial of the case and determine the collateral issue concerning the legality of the seizure. This, for the reason that the defendant has not previously had an opportunity to raise the question. Where the defendant has had previous knowledge that the articles were taken, it is not unfair to him that he should be required to move, prior to the time of the trial, to suppress the articles as evidence. But where he has not had the opportunity of obtaining the knowledge of the taking until the articles are offered in evidence, it would be a harsh and unfair rule to deprive him of the right, during the trial, to object to the introduction of the articles in evidence and to prove, if he can, the ground of his objection. Gouled v. United States, 255 U. S. 298.
The appellant’s attorneys in their petition for rehearing and their argument, assert that the opinion of the Department, while in accord with the older doctrine, is directly against the more recent authorities, particularly cases of such recent decision as not to have been cited in the original briefs. We have very carefully read all the cases cited, and we believe that *464there is not one which takes a more advanced position on this somewhat troublesome question than was taken by the Department decision. Numerous cases have been cited in support of the general contention that the court will stop in the midst of a trial and hear evidence upon the disputed fact whether the articles offered in evidence were or were not lawfully taken. The following are some of the more recent cases cited in support of this assertion: Holmes v. United States, 275 Fed. 49; Dukes v. United States, 275 Fed. 142; Berry v. United States, 275 Fed. 680; Honeycutt v. United States, 277 Fed. 939; O’Connor v. Potter, 276 Fed. 32; State v. Wills, 114 S. E. (Va.) 261; Williams v. State, 92 South. (Miss.) 584; Youman v. Commonwealth, 189 Ky. 152, 224 S. W. 860; Gouled v. United States, supra. These and other cases cited by the appellant do not support his contention. In each of them the state’s testimony affirmatively showed, or it was conceded as a fact, that the articles offered in evidence had been unlawfully seized, thus bringing the rule laid down by us directly within the doctrine of those cases. It would unnecessarily extend this opinion to refer in detail to the facts in the various cases cited.
There are many cases which hold that, when an article is offered in evidence in support of the contention of the state, if it is otherwise admissible, the court will not inquire as to the mann'er in which it was obtained. This rule was at one time supported by the supreme court of the United States. Adams v. New York, 192 U. S. 585. Indeed, until very recent years, the great weight of authority has supported that view, hut courts have recently quite generally receded from the doctrine of the Adams case and those supporting it, and now take the view which we have hereinbefore expressed. Appellant greatly relies on the case of *465Gouled v. United States, supra. There the facts were certified by the lower court and it was admitted that the article offered in evidence had been illegally seized. It does not support appellant’s contention.
Nor can we agree with the assertion of the appellant that the conclusion to which we have come is contrary to the view expressed in State v. Gibbons, 118 Wash. 171, 203 Pac. 390.
In that case, the defendant moved, before the trial of the case, for the suppression of the liquor as evidence, and it also appears that, at the trial, the state’s testimony affirmatively showed that the liquor had been unlawfully seized, for the opinion says:
‘ ‘ Thereafter appellant plead not guilty and the trial proceeded; during which the whiskey was introduced in evidence by the prosecution, over the objection of appellant’s counsel, after the facts showing the manner of its illegal seizure by the sheriff, as above related, had fully appeared by the testimony of the state’s own witnesses.”
The judgment is affirmed.
Main, C. J., Mackintosh, Holcomb, Tolman, and Parker, JJ., concur.