State v. Ware

Denied February 29, 1916.

On Petition for Rehearing.

(155 Pac. 364.)

Mr. G. E. Ramaker, for the petition.

Mr. George Mowry, Deputy District Attorney, Mr. Walter R. Evans, District Attorney, and Mr. John A. Collier, Deputy District Attorney, contra.

In Banc.

Mr. Justice Benson

delivered the opinion of the court.

Counsel for defendant Ware in his petition for rehearing urges upon this court a further consideration of two contentions: (1) That the judgment of conviction should be reversed because of the fact that defendant’s private papers were obtained by unlawful seizure and search, and that the trial court erred in denying his motion filed before trial for a return thereof; and (2) that the court erred in permitting certain cross-examination of the defendant.

6-9. Considering these in the order indicated, we may say that the case of Weeks v. United States, 232 U. S. *378383 (58 L. Ed. 652, Ann. Cas. 1915C, 1177, L. R. A. 1915B, 834, 34 Sup. Ct. Rep. 341), is relied upon by counsel in support of Ms contention. A careful examination of tMs opinion discloses that tbe facts in that cause are decidedly different from those in the one at bar. In that case, the officers entered his house in his absence, and without a warrant of arrest. In the present instance, the papers were taken at the time of the arrest from the defendant’s place of business. In addition, the Circuit Court subsequently made an order impounding the papers for use upon the trial, which it had a right to do: United States v. McHie (D. C.), 196 Fed. 586. We are unable to see that our former opimon is out of harmony with the overwhelming weight of authority. We do not wish, however, to be understood as commending the procedure of the district attorney’s office, for, in our view, they were not justified in the reckless methods they pursued in obtaining evidence. If the defendant suffered injury by the seizure of his papers, he had his remedy in some civil proceeding in the courts. However, as we have already indicated, the courts will not pause in the-orderly trial of a criminal cause to inquire into the manner in which the evidence was secured. The private papers referred to are the property of the defendant, and, upon proper application to the clerk of tMs court, they will be returned to Mm.

As to the second contention of counsel, there is nothing to be said in addition to the statement of our former opinion.

The petition for rehearing is denied.

Affirmed. Eehearing Denied.

Mr. Justice Eakin absent.