(dissenting).
I dissent on tbe constitutional question. I concede that tbe Tonn case, if adhered to, is controlling in tbis ease. I wish to point out, however, that, as I view it, tbe vital point in tbe Tonn case was barely mentioned, was not discussed, and, as I think, was not decided. ’It has never been decided, or even raised, in tbis state, prior to tbe Toivn case. There was a long discussion, and many cases are cited in the Tonn case and in tbe dissents, on tbe question as to whether or not, as a general proposition, evidence obtained in an unlawful search and seizure, and where both the national and state Constitutions have been violated, is admissible. The vital point, as to whether it is error to overrule an application to return the property so unlawfully seized, or whether, where such application is overruled, the evidence is admissible, was given scant consideration. The only reference to this vital proposition is in a few words. I expressed my views in the Tonn ease, as did the late Mr. Justice Weaver. I do not wish to repeat what was there said, but there are a few other observations I desire to make at this time.
In the instant ease, a timely application was made to return the property unlawfully seized. This was overruled. The question is whether, under such circumstances, — and not the circumstances of tbe cases discussed in the majority opinion in the' Tonn case, — the evidence was admissible. It was conceded in *983the Town ease that there was an unlawful seizure, and that the Constitution was violated. It must be conceded in the instant case, not only that the Constitution is violated, but that the proceedings were high-handed. I do not wish to add my approval to such proceedings by holding the evidence admissible, when practically all the cases on the subject hold that it is not admissible, and that it is error to overrule the application. In the Tonn case, however, a lengthy discussion and citation of many cases were had, and it was held that evidence was admissible where there is an unlawful seizure; but the question I am now considering was disposed of in short order, by saying that, because the evidence was admissible anyway, the application to return the property and the effect of it were not material.
There are some other facts shown by the record which are not, mentioned in the majority opinion in this case. The sheriff had a warrant for the arrest of the defendant, and under the warrant he would have authority to enter the premises for the purpose of making the arrest. Code Section 5201. He had no right to search the premises and seize property under such a warrant. He had no search warrant. After the sheriff had arrested the defendant and she had been taken to jail by a sheriff’s deputy, the sheriff searched her premises, which were her private residence, and seized, not only the instruments offered in evidence, but other property, including her private papers, after ransacking the house and her private papers, some of which were taken with him, but not used in evidence in this case. After defendant had been taken to jail, one of her sons, at the demand of the sheriff, furnished certain keys, which the sheriff used in searching different parts of the house. Defendant’s husband testified that he is the head of the family, and that he did not consent to such search and seizure. The defendant also so testified. The testimony of the defendant and that of the sheriff, taken as a whole, show that, though perhaps defendant did not know her constitutional rights, she objected and protested against the sheriff’s making a search, before she was taken to jail; and, as said, she was not present at all when the search was made and the seizure made of the instruments and papers. This being so, there was no consent or waiver. The sheriff did not, at first, explain to the defendant the purpose *984for which he desired admittance to the house, which explanation the statute seems to require. He went to the house with a woman deputy sheriff, and the defendant was first informed that the sheriff was “the young man in the case.” This statement Avas first stricken from the record, but went in later. He afterwards informed defendant who he was, and the purpose of his visit. The sheriff at first testified:
‘ ‘ Q. Before Mrs. Rowley left the house, and after you had informed her as to who you were and what you were out there for, did you say anything to her with reference to searching the house? A. I can’t remember the exact conversation. I spoke to her about searching the place. Q. What did she say when you mentioned that subject, if anything? A. I can’t remember the words she said. She said I wouldn’t find anything. When I started to look through the library table, she said it wasn’t necessary for me to look around through those letters. I told her I always did that, whenever I was out making an arrest and things were there that were liable to lead to some of the 'facts. She objected, and said she wished I wouldn’t do so.”
Later in his examination, and on cross-examination, he attempts to sti’engthen his testimony by saying:
“If I remember the exact words, she said, ‘Go to it; you won’t find anything here.’ ”
His evidence, taken as a whole, shows that he had no recollection of what was said. The record is that she objected and protested, as did other members of her family, to the sheriff’s making the search and seizure. As said, the defendant at the proper time made an application to the court to return the property so unlawfully seized. The evidence was properly objected to, and the question was raised by motion for directed verdict and by motion for new trial, and perhaps in other ways. We have held that, under some circumstances, and for certain purposes, the sheriff, upon making an arrest, may search the person of a defendant. This is where money or property may be taken from him which is connected with the crime charged, or which may serve to identify the prisoner, or which may be used by him in effecting an escape. But that is not this case.
The provision in the state and Federal Constitutions is this:
*985“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizures and searches, shall not be violated,” etc.
There is much more involved than the result of this or any' other particular case. The only reason given in any of the cases, or the underlying principle, as the books say, for holding the evidence admissible where there has been an unlawful search and seizure, in the absence of an application to return the property, is that the courts will not stop the main trial to investigate a collateral matter. But no one ever heard of a court’s refusing to stop to investigate the question as to whether a confession was obtained by third-degree methods. There is no difference between such a case and the question-now being considered. There is a suggestion in the Tonn case that to hold the evidence inadmissible would hamper the prosecution of criminals. I yield nothing to my brothers on the question of law enforcement. It occurs to me that, if the Constitution is in the way, it should not be brushed aside, but amended, and in the manner therein provided. In this connection it should be remembered that the very purpose of the fourth and fifth amendments to the Federal Constitution, and other amendments thereto, was to prevent thumbscrew and third-degree methods, including unlawful searches and seizures. To my mind, to admit the evidence under the circumstances here shown is to make of the Constitution a mere scrap of paper, or, to put it in the words of the Supreme Court of the United States, ‘ ‘ a mere form of words. ’ ’ See cases in the dissents in the Tonn case. The rule, which I want to state again, supported by numerous cases, is stated in 10 Ruling Case Law 933 thus:
“It is obvious, and the courts have frequently declared that, if letters and private documents may be seized in violation of the constitutional safeguard, and held ' and used in evidence against a citizen accused of crime, then the constitutional provision is ineffectual and of no value. From this it may correctly be inferred * * * that there is a method by which the use of such evidence may be prevented. 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 *986evidence offered, and that consequently the court, on such an objection, cannot enter on the trial of a 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.”
This is the rule adopted by the Supreme Court of the United States in Weeks v. United States, 232 U. S. 383, and other cases. So far as I know, there are no cases to the contrary. The majority opinion does not call attention to any such cases. This court overrules the interpretation by the Supreme Court of the United States, of the Federal Constitution. The rule just stated is the way out of the difficulty which some of the courts have found in rejecting such evidence, and permits the courts to support the Constitution, rather than make of it a mere form of words. The proposition is practically ignored in the Tonn case, and entirely so in the instant case. To hold the evidence admissible where the application is made, is an entirely different proposition from holding that it is admissible where the application is not made. The two propositions are as wide apart as the poles. I am at a loss to understand how the majority get around the rule before stated. There is no attempt to do so. The rule is reasonable and right. In the one case, the Constitution is upheld and supported; in the other, the violation of the Constitution by the sheriff is approved.
There is another reason, as I think, why the instruments were erroneously admitted in evidence. I shall only mention it, without discussing it. The jury may have surmised that the instruments were or could be used for the purpose of producing an abortion. It may be so, but there is no evidence in the record to show that fact. The evidence is that the instruments are used *987for proper purposes, and there is evidence that members of defendant’s family so used them.
I would reverse.