It is with extreme reluctance that I find myself unable to agree with my associates on this question and in view of their ability and experience none but the most urgent and compelling reasons could prompt me to file a dissenting opinion. When sacred constitutional principles are involved, however, a proper respect for the rights and liberties of my fellow citizens demands that I should announce the law as I find it to be.
The Constitution of Delaware contains the following provisions:
Article 1, § 6. “The people shall be secure in their persons, house, papers and possessions, from unreasonable searches and seizures; and no *148warrant to search any place, or to seize any person or thing, shall issue without describing them as particularly as may be; nor, then, unless there be probable cause supported by oath or affirmation.”
This article is not only a constitutional provision, but it forms a part of the Bill of Rights to which is added these impressive awards;
“We declare that everything in this article is reserved out of the general powers of government hereinafter mentioned.”
The Constitution is comprised of a series of delegated rights of the individual citizens — delegated to the state as a political entity to be treated by it in a stipulated way for the welfare and betterment of all the people. The Bill of Rights consists of certain inalienable fundamental principles which a cautious people, warned by the example of historical experience, believed were absolutely necessary for the preservation of individual liberty, and, therefore, could not be delegated — not even to the body politic of which they themselves were members.
The security of the persons, houses and property from unreasonable search or seizure has, therefore, it would seem, been as sacredly guarded as is possible in a representative form of government. Nor is this provision of the Constitution a new one. In its precise terms it first appeared in the Constitution of 1792 and was continued verbatim in the Constitution of 1831 and in our present Constitution of 1897. It was accepted by the framers of the Constitution of 1852, which, on other grounds, was not accepted by the people. Prior to the time of the adoption of our first Constitution of September 20, 1776, there had been formulated on September 11, 1776, a Declaration of Rights and Fundamental Rules of the Delaware State, and Section 17 of this Declaration of Rights provides:
“That all warrants without oath to search suspected places, or to seize any person or his property are grievous and oppressive, and all general warrants to search suspected places, or to apprehend all persons suspected, without naming or describing the place or any person in special, are illegal and ought not to be granted.”
The Constitution, therefore, provides that the people shall be “secure” from unreasonable searches and seizures. Webster de*149fines “secure” as “to make certain, to put beyond hazard,” and it was this certainty, this removal beyond any peradventure of doubt, that was intended to be protected and guaranteed by the Constitution.
The evil sought to be met by the constitutional provisions reaches back to the general warrants issued by the Star Chamber. For a long time such was the state of English society that their issuance met little or no resistance, but how subversive to human liberty such practices had become was clearly shown by Lord Camden in Entick v. Carrington, 19 How. St. Tr. 1029, which case, it has been aptly said, “laid broad and deep the principles which were afterwards crystalized in the Fourth Federal Amendment.”
It would avail but little to trace these warrants to our American shores and show how Otis fought against the writs of assistance in that historic trial in 1761, where, as John Adams so graphically says, “Then and there the child Independence was bom.” Sufficeit to say that the first act of our fathers in founding our state and our nation was to establish in indelible form the thought that Chatham had when he so tersely said:
“A man’s house is his castle; it may be a straw hut, the wind may whistle around it, the rain may enter, but the King cannot.’’
Some courts have thought that the constitutional guaranty against unreasonable searches and seizures was chiefly intended as a restriction upon the legislative branch of the government, but I prefer to think otherwise. In 24 R. C. L. 704, it is said:
“This restriction was intended to operate on legislative bodies, so as to render ineffectual any effort to legalize by statute what the people expressly stipulated could in no event be made lawful; upon executives so that no law violative of this constitutional inhibition should ever be enforced; and upon the judiciary so as to render it the duty of the courts to denounce as unlawful every unreasonable search and seizure whether confessedly without any color of authority or sought to be justified under the guise of legislative sanction.’’
What then are the reasons urged to prevent this court from placing its stamp of disapproval upon a search and seizure without a warrant?
First it is urged that it is and long has been a principle of law that evidence, if competent, relevant and material and offered *150in the orderly course of the trial, will be received and the court will not stop to inquire into the manner in which it was obtained. This is undoubtedly true, but a correct application of the rule can only be obtained by an examination of the principle underlying it. That principle is that the court having entered into the trial of a criminal case is not to have its attention diverted to a collateral question, nor will it delay a criminal trial for the determination of an independent issue.
Some learned writers such as Mr. Wigmore contend that if the application for the return of the chattel taken without warrant furnishes a collateral issue if made at the time of the offer of evidence that issue cannot be made independent by the making of the application before trial for the return of the chattel. Can this be true? In the present matters the criminal cases are pending but have been continued and cannot be tried until the next term of court while now, before the court awaiting and demanding immediate attention are petitions by those who desire to be restored to that which has been taken from them without warrant of law.
If the stated principle underlying the above-mentioned rule of evidence be correct the rule itself can have no application to this case.
Wharton’s Criminal Evidence, (10th Ed.) p. 1076, says:
“State courts, in some instances in express terms, have stated their indifference to the methods used to obtain demonstrative evidence and refuse to exclude it on the ground that it was illegally obtained. A different rule prevails in the United States courts.”
This distinction as to the forum, if such there be, is not easily comprehended. The Fourth Amendment to the federal Constitution and Section 6 of article 1 of the Delaware Constitution are essentially and substantially the same. They each form part of the respective national and state Bills of Rights. .Their functions in their respective fields are the same and their language almost identical. Are the rights of a citizen of Delaware under the Constitution of this state to be denied by the courts of this state when the same rights under the federal Constitution when infringed by *151a federal officer will be maintained in a federal court? Other courts may reach different conclusions, but the courts of Delaware should yield to none in guarding and protecting the constitutional rights, privileges and immunities to the people.
There being no substantial difference between the wording of the federal and our state Constitution, it is, therefore, very proper that we look to the construction placed by the Supreme Court of the United States.
Extended citations can serve no useful end since there can be no doubt of the rulings of that court. In Weeks v. U. S., 232 U. S. 383,34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, the Supreme Court held that where papers were seized after a search without a warrant they must be returned to the defendant if a seasonable demand has been made therefor, before trial. This case has been approved by and followed in Silverthorne Lumber Co. v. U. S., 251 U.S.,385, 40 Sup. St. 182, 64 L. Ed. 319; Gouled v. U. S., 256 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647; and Amos v. U. S., 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. 654.
What are the facts on which this petition is based? No sufficient search warrant was issued upon oath or affirmation. By the legal mandate of no court or judicial officer did the authorities act. No proper judicial process lent color to their action, but merely responsive to an individual will the proceeding was taken regardless of the constitutional provision. No matter how beneficial to the people the prohibition laws may be, no matter to what extent the courts will go in enforcing them when proceedings are duly and regularly taken, this court cannot look on with listless gaze or decline to act when brought face to face with an unauthorized proceeding if this is to remain a government of law. Constitutional rights belong not only to the rich, but likewise to the poor, not only to the successful man of affairs, but also to the unfortunate and, indeed, to the incipient criminal in our midst.
Revolutions overthrow Constitutions and destroy them, but just as deadly are the insidious encroachments which from time to time creep in and change without the express sanction of the *152people. Against the latter the courts in maintaining the' fundamental liberties of the people must be ever on their guard.
The state, however, contends that where the possession of liquor is in itself unlawful a distinction is to be made; when the possession of liquor is the corpus delicti no search warrant is necessary.
The possession of liquor by an individual is admittedly unlawful, but is that any reason why the state itself may unlawfully seize it from the individual? Is the violation of a penal statute to be proved by the obliteration of constitutional rights? As the Supreme Court of Florida justly says in Atz v. Andrews, 94 South. 329:
“Why a court should encourage its officers illegally to acquire evidence to be used against a person on trial for having illegally acquired some commodity is a problem in morals that is a bit confusing to one not a zealot or fanatic.
“For one to * * * possess intoxicating liquors is a crime; but it is a crime that generally affects a few persons in a restricted locality. To permit an officer of the state to acquire evidence illegally and in violation of sacred constitutional guaranties, and to use the illegally acquired evidence in the prosecution of the person who illegally acquired the intoxicants, strikes at the very foundation of * * justice and where such practices prevail make law enforcement a mockery."
It is not the seizure by the state of the illegally possessed liquor that alone violates the Constitution. The violation took place before the intoxicants were found, before, perchance, its existence was even known.
The constitutional violation took place at the first step of the unlawful search, the brealcing of the door or other means of entry, the act of violence or premeditated stealth, it matters not which, that first gave an unauthorized entrance to the house. Under what principle a constitutional violation as of that time is absolved or excused by the subsequent discovery of intoxicating liquor on the premises is difficult to determine.
An unlawful search cannot be justified by what is found. A search that is unlawful when it begins is not made lawful when it ends by the discovery and seizure of liquor. It is against such prying, on the chance of discovery, that the constitutional amend*153ment was intended to protect the people. U. S. v. Slusser (D. C.), 270 Fed. 818.
This conclusion seems to have the support of all the recent cases concerning the illegal possession of liquors which have come to our attention with the exception of State v. Simmons, 183 N. C. 684, 110 S. E. 591. See People v. Halveksz, 215 Mich. 136, 183 N. W. 752; U. S. v. Alexander (D. C. Fla.), 278 Fed. 308; U. S. v. Slusser (D. C. Ohio), 270 Fed. 818; State v. Peterson, 27 Wyo. 185, 194 Pac. 342, 13 A. L. R. 1284.
It would seem that one foundation upon which the majority opinion is built is that, the possession of intoxicating liquor being unlawful, the defendant can have no property therein. With this result I cannot agree. Intoxicating liquor is personal property and the unlawfulness of its possession cannot destroy its character as property. Being property, it may belong to any one and must belong to some one. It has repeatedly been held that a chattel kept for an unlawful purpose may be the subject of larceny. Osborne v. State, 115 Tenn. 717, 92 S. W. 853, 5 Ann. Cas. 797. If it be subject of larceny in a prosecution for larceny, proof must be made both as to its character and as to its ownership regardless of the illegality of the possession. In Com. v. Rourke, 10 Cush. (Mass.) 397, it is held that money derived from the illegal sale of intoxicating liquors may be the subject of larceny. The true rule as I understand it is that laid down in Com. v. Cofee, 9 Gray (Mass.) 139, where it is said:
‘‘The thing taken was property and the subject of larceny. The owner might forfeit and lose the property, if * * * it should appear that it was procured and held for an illegal purpose, but only upon such proof, and in the method the law points out."
It would seem to me there can be a property right entitling one to ask for the destruction of the chattel even where the return of the intoxicating liquor could not be granted because of the illegality of the possession. The law provides a mode of forfeiting and destroying illegally possessed liquor and it seems to me more politic that resort be had to orderly and legal process rather than unauthorized search and seizure.
*154If it be true that the defendant may have a property right in the chattel unlawfully taken from him, I cannot distinguish this case from the rulings of the United States Supreme Court herein-before referred to.
I find myself utterly unable to agree with the proposition that because the possession of intoxicating liquor is prohibited by state law {malum prohibitum and not malum in se) that, therefore, a search for such liquors which results in their discovery must not legally be commenced with a search warrant. Such is the natural result of the majority opinion in this case.
The Legislature has made the possession of narcotic drugs unlawful; so, too, is the possession of a hypodermic needle; and the logical result must be that whenever the Legislature chooses to make the possession of any article unlawful that from that time any search which results in the discovery of such article need not be predicated upon a legal search warrant, especially as to any use to be made of the seized article. Upon this reasoning the Legislature of this state can nullify the Bill of Rights. I cannot accede to this doctrine believing as I do that if the Legislature of this state ■ passed a specific act expressly authorizing the search for intoxicaing liquor without a search warrant that such act would be held by this court to be unconstitutional since the provision relative to searches and seizures is a part of the Bill of Rights and “reserved out of the general powers of government.”
For the reasons indicated above I feel that no property of a defendant illegally seized upon a search without a warrant can be used in evidence against him if timely objection be made thereto.