State v. Dersiy

Bridges, J.

The appellant was charged with, and convicted of having, the unlawful possession of intoxicating liquors.

He was operating a so-called soft-drink place, in the city of Raymond, Washington. On January 1, 1921, the officers of the law visited his place, found and took away with them some intoxicating liquor, which was subsequently admitted in evidence on behalf of the state. Immediately following the calling of the case for trial, and when the court was ready to make up a jury, but before any prospective jurors had been called, the appellant moved the court to require the return of the liquor to him, or to suppress it as evidence in the ease, on the ground that it had been seized without a search warrant. This motion was supported by appellant’s affidavit, tending to show that the officers visited his place of business at about eight o’clock in the evening, and, without displaying or having any search warrant, searched his premises and obtained the liquor mentioned. The affidavit further showed that the appellant “did not ascertain for a certainty until May 3, 1921, at the hour of about 11 o’clock a. m.,” that the officers making the search did not have a search warrant. The trial court declined to hear this motion for the reason it was not timely made. Of this ruling the appellant complains here. The facts are that the liquor was obtained on the evening of January 1, 1921, and the information against appellant was filed on January 15 of the same year, and that appellant was arrested and arraigned on January 16, and that the case came on for trial on May 4. Under these circumstances, we think the court’s ruling was right. "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. While this particular question has been presented to this court two or three times, we have not been required to pass on it. The question is elaborately and learnedly discussed in the case of People v. Marxhausen, 204 Mich. 559, 171 N. W. 557. The court there said:

“It must be patent that upon the trial of a criminal case the court cannot pause in the trial when a bit of evidence, admissible under general rules, is offered, to engage in a collateral inquiry as to how the prosecution became possessed of such evidence. That would be the trial of a collateral matter, and as a general proposition the courts have so held, and where the evidence offered was competent, have not paused in the trial to determine the collateral issue of whether the evidence was legally secured or not.”

In 10 R. C. L. 933, the rule is stated as follows:

“The principle underlying the decisions admitting the evidence is that an objection to an offer of proof made on the trial of a cause raises no other question than that of the competency, relevancy and materiality of the evidence offered, and that consequently the court, on such an objection, cannot enter on the trial of collateral issue as to the source from which the evidence was obtained. But since there is a right, there must of necessity be a remedy, and the remedy is to be found in the making of a timely application to the court for an order directing the return to the applicant of the papers unlawfully seized. On such an application, the question of the illegality of the seizure may be fully heard, and if the court erroneously refuses to order a return of the papers, and thereafter receives them in evidence against the applicant over his objection, it is an error for which a judgment of conviction must be reversed.”

The supreme court of the United States has adopted the same rule. See Taylor v. Benham, 46 U. S. 233, 12 Law Ed. 130.

We are of the opinion that a rule of this character not only works no injustice on the person charged with the crime, but greatly facilitates the trial of cases.

But appellant contends that his application showed that he did not learn that the liquor was seized without a search warrant until the day before the case was called for trial. Appellant’s affidavit hardly justifies this statement, because it shows that he did not “learn for a certainty” that such was the case until about eleven o’clock of the day before the ease was called for trial. It was the duty of the appellant to make an investigation to determine whether the liquor was seized with or without a warrant, if he wanted to raise that question at the trial. He would not be permitted to sleep on his rights and then raise the question at a time when the determination of it would greatly delay the proceedings. There is no reason that we can see why, had he made a reasonable investigation, he should not long before have learned whether a search warrant had been issued. Four months expired between the time of the taking of the liquor and the time he presented his motion to suppress. It may be conceded that circumstances may arise where it would be the duty of the court to stop in the midst of a trial and determine this collateral question, but the facts here do not present such a case. In any event, it is admitted by the appellant that, during the forenoon of the day before the case was called for trial, he learned for a certainty that the seizure had been accomplished without any search warrant. It was his duty, immediately upon obtaining the information, to make his motion to suppress the testimony and have it brought before the court. There is no showing why he did not do this. We find nothing in the record which would excuse the appellant from presenting his motion at an earlier period.

Appellant contends that his objection to the receipt of this liquor in evidence during the trial should have been sustained. But this is untenable for the reasons hereinbefore stated. Under the testimony introduced by the state, the liquor was properly admissible as an exhibit, unless it had been unlawfully obtained, and at that stage of the proceedings the court could not stop to inquire into that collateral question.

During the trial the state introduced in evidence appellant’s affidavit in support of his motion to suppress this testimony. This affidavit stated, among other things, that certain officers entered his premises and proceeded to search them while he was away, and that “the result of said search was the finding of some liquor, to-wit: — fermented grape juice, containing alcoliol and being an intoxicant, of which the said officers took possession. ’ ’ This affidavit, if admissible, tended to show that the liquor which had been seized by the officers was intoxicating. Appellant objected to the receipt of this affidavit in evidence, and now claims error thereon. He contends that its receipt was in violation of § 282, Rem. Compiled Statutes, which provides that “no pleading shall be used in a criminal prosecution against the parties as evidence of the fact alleged in such pleading.” The affidavit was not a pleading in this or any other case, and therefore does not come within the statute. It supported an objection to the receipt of certain evidence. It contained certain admissions which tended to prove appellant’s guilt. For this purpose it was admissible.

“A written statement by a defendant, when prepared deliberately and seriously, is not only admissible in evidence against him, but is of weight proportioned to its solemnity, and pertinency.” Wharton’s Crim. Evidence, vol. 2, p. 1328 (10th ed.).

In the case of State v. Bringgold, 40 Wash. 12, 82 Pac. 132, 5 Ann. Cas. 716, we said:

“It is next assigned that the court erred in permitting the state to show that the appellant had pleaded guilty to the complaint filed against him in the justice’s court. It is argued that this plea became functus officio after it was withdrawn, and was no longer admissible as evidence. There are cases which maintain this rule, but we think the better rule is the other way. It is generally held that extrajudicial confessions, voluntarily made by a defendant, are admissible against him as evidence tending to show the fact confessed, whether or not the confession itself, or the matter of the confession, be afterwards denied.”

See, also, State v. Hopkins, 13 Wash. 5, 42 Pac. 627.

Appellant further contends that the evidence was insufficient to justify the verdict. The substance of his argument is that, in the first place, the liquor in question was grape juice, which, under the law, he was entitled to possess, and if because of fermentation, for which he was not responsible, this grape juice later became intoxicating liquor, he ought not to he held liable for possessing it. It seems to us that the mere statement of this proposition shows its fallacy. It might have been competent for appellant to undertake to show to the jury that he did not know that his grape juice had become intoxicating liquor. This he did not do. Certainly, in the absence of this proof, the jury had a right to conclude that he knew of the transformation.

The judgment is affirmed.

Parker, C. J., Fullerton, Tolman, and Mitchell, JJ., concur.