These cases, seventeen in number, were filed in this court as of right, on the ground that they present questions arising under the constitutions, state and federal, on error from the court of appeals of Montgomery county. All of them were originally tried before the municipal court of the city of Dayton. Only two of the cases were argued in this court, but there was an agreement that the same judgment should properly be rendered in each and all the cases. Notwithstanding this agreement we have carefully examined the records and bills of exceptions in each and every case.
The cases are not in fact similar in all respects and it is found that different legal questions are involved in different cases.
In the majority of the cases search warrants had been issued, but in other cases search was made without a search warrant having been issued; and in every case a petition was filed asking for the return of the property seized, and in each case the petition for return was filed before trial upon the affidavits.
In one of these cases, No. 17542, the case of Supensky, the goods were ordered returned and the ease thereafter proceeded upon other evidence. In
In some of these cases the questions argued in this court relate to the regularity of the search and the right to make a search and to seize goods by virtue of a warrant which had been issued by a clerk of a municipal court without any action on the part of the court, or any judge thereof, and without a preliminary hearing or introduction of any evidence other than the affidavit itself as the basis for issuing the search warrant.
It should be stated, however, that in four of the cases, to-wit, No. 17532, Stravinsky v. State of Ohio, No. 17533, Asztalos v. State of Ohio, No. 17535, Nagy v. Statel of Ohio, and No. 17541, Meres v. State of Ohio, there was a preliminary finding made by the chief justice of the court in the following language : “An affidavit having been filed herein setting forth that certain intoxicating liquors and still used in connection therewith are now unlawfully concealed in the place and by the person named in said affidavit and contrary to the laws of this state relating to intoxicating liquors, as are more particularly set forth in said affidavit, and this matter coming on for hearing upon such affidavit and the evidence adduced in support thereof the court finds that there is good cause to believe the facts set forth therein to be true and that a search warrant issue in conformity with the allegations of said affidavit.”
In No. 17545, the case of Madasky v. State of Ohio, counsel for the accused made a statement at the time of the hearing in open court as follows: “Upon the affidavit being filed the court ordered the clerk to issue the warrant.” It therefore appearing
As to those five cases, therefore, the records show .that the proceedings were in fact sufficient even when measured by the claims of counsel for plaintiffs in error.
We have carefully examined all of the other bills of exceptions to determine whether or not there was any other competent evidence upon which the judgment of the trial court could rest and which would support the convictions, in addition to the exhibits which the court refused to order returned.
Without stating at length the testimony in the numerous cases, it is sufficient to say that there is in each instance abundant evidence of a competent nature to support the conviction. In some instances stills were found in operation and the defendants in charge thereof. In other instances stills and other appliances for manufacturing intoxicating liquors, not in operation, were found, but the officers also found large quantities of mash and small quantities of whiskey. In other instances the defendants being found in possession of liquors and other contraband property frankly made admissions to the officers, which were testified to.
The judgments in all these cases could properly be affirmed by this court for the reasons already stated, but; inasmuch as the other questions have been seriously argued, and the pronouncements of this court have not been very definite upon those questions, it is deemed proper to discuss the question of the regularity of the search.
In each instance the affidavit filed as the basis for the search warrant alleged the commission of an offense against the Crabbe act, and described the building particularly, stating its location and that the same was not a bona fide private residence. The affidavits contained the further allegation: ‘ ‘ The affiant aforesaid says that he has good reason to believe and does believe that said intoxicating liquors are still now concealed and certain facilities, equipment, implements and furniture are still now kept at the place aforesaid and for the purpose aforesaid. ’ ’
Acting upon this affidavit the clerk of the municipal court, in eleven of the cases, issued the search warrant without any action whatever on the part of the judge.
Section 6212-16, General Code, in part provides as follows: “A search warrant may issue, and proceedings had thereunder, as provided in Sections 13482 to 13488 inclusive of the General Code so far as the same may apply, and such liquor, the containers thereof, and such property so seized shall be
We must therefore turn to the older provisions of the code referred to for the procedure in issuing and executing a search warrant. ' Section 13483, General Code, provides: “A warrant for search shall not be issued until there is filed with the magistrate an affidavit particularly describing the house or place to be searched, the person to be seized, and the things to be searched for, and alleging substantially the offense in relation thereto, and that affiant believes, and has good cause to believe, that such things are there concealed.”
It will be seen from what has already been stated that the affidavits on file were in substantial compliance with that section.
It will further be seen that that section makes no requirement that there be a preliminary hearing or that other evidence in support of the affidavit be offered, or that there be a preliminary finding by the magistrate of probable cause, but it is sufficient if an affidavit be filed containing the necessary allegations as to the offense committed, the description of the property and affiant’s good faith in invoking the process of the court.
It is the purpose of a search warrant to search houses or other places for stolen property, or contraband goods, for the purpose of ferreting out crime, and surely it cannot be claimed that a person’s house or other property is any more sacred in the eye of the law than a person’s liberty. The provisions of Section 14 of the Bill of Rights, above quoted, have the same application to warrants for arrest as they have to warrants for search. It will
It will be seen, therefore, that this section requires that the magistrate shall have reasonable ground to believe that an offense has been committed, while in the matter of a search warrant it is only necessary that there be filed with the magistrate the affidavit of any citizen alleging that such citizen believes and has good cause to believe the concealment of property in connection with crime.
It is very clear therefore that the statutory requirement relating to arrest of persons is more stringent than the statutory requirement relating to search and seizure of property, and this is as it sTiould be. Both of these sections of the code were enacted at the same time and have been in force for more than fifty years, and, while the practice has not been definitely settled with relation to the necessary preliminary steps in issuing a search warrant, the practice has been quite uniform for more than a half century to require nothing more than the filing of an affidavit as the basis for the issuance of a warrant for 'arrest. Since the statutes are so similar, except for the statute relating to arrest being somewhat more stringent, and since the same section of the bill of rights must necessarily apply to
In a rather recent per curiam, decision of this court concurred in by Marshall, C. J., Johnson, Hough, Robinson and Matthias, JJ., under date of July 5, 1922, entitled Cochran v. State, 105 Ohio St., 541, it was decided that where a magistrate issues a search warrant upon the filing of an affidavit alleging that affiant “has reason to believe and does believe,” etc., without further preliminary hearing or other evidence of probable cause, it is sufficient basis for the issuance of the warrant.
The further question is raised in some of the cases now under consideration that the writ was issued by a clerk of the court without any action whatever on the part of the court, and it is argued that the act of issuing the warrant is a judicial act and therefore an entry must appear upon the journal of the court authorizing and ordering the further action on the part of the clerk, and that without such order on the part of the court the action of the clerk is invalid. This question has never been decided by this court, and, so far as can be ascertained, has never been before the court for determination, neither has the question ever been before any of the inferior courts, so far as reported cases disclose, and it may therefore be assumed that it has always been considered the proper practice to issue such process without a preliminary order, in conformity to the similar practice in making arrest, and the
These causes are argued in this court upon the theory that the constitution has been violated, but inasmuch as the statute has been faithfully followed it is manifest that if the constitution has been violated such violation must be charged to the legislature in the enactment of Section 13483, and for the reasons already stated it would necessarily follow that if Section 13483 is unconstitutional Section 13496 is also
So far we have discussed only general laws. It will be found, however, that Section 4594, General Code, gives special authority to the clerk of a police court to issue search warrant process. That section reads as follows: “When an affidavit is filed with him for a peace warrant, search warrant, or charging any person with the commission of an offense, the clerk of police court shall have power to issue a warrant under the seal of such court to ar
For the reasons already given this statute must be held to be constitutional, and if this conclusion is reached it is decisive not only of this matter, on the ground that the municipal court of Dayton is the police court of that city, but must be decisive of all other similar cases which may arise in Ohio, because police courts and municipal courts transact practically all of the misdemeanor judicial business in the state of Ohio other than that transacted by magistrates and other courts having no clerk.
The decisions of many of the courts of other states are in harmony with the foregoing views. "We will not discuss them further than to quote the language of one of them, Lowery, Jr., v. Gridley, 30 Conn., 450, at page 459: “Indeed it would be strange if a cask of liquor was more sacred in the eye of the law than a man’s person. But it has never been thought necessary that in the case of a common warrant it should be preceded by anything but the complaint * * * of a prosecuting officer.”
It should be noted that that declaration was made long before the enactment of the 18th Amendment, and it must be apparent that it is more sound and forceful in these days of difficult enforcement. That expression was made at a time when the traffic in liquor was perfectly lawful under regulations then provided. Inasmuch as it has become unlawful, and all property rights in liquor have been taken away, and liquors declared contraband, surely the above-quoted expression must be unqualifiedly approved.
“Sec. 4. The judge or commissioner must, before issuing the warrant, examine on oath the complainant and any witness he may produce, and require their affidavits or take their depositions in writing and cause them to be subscribed by the parties making them.
“Sec. 5. The affidavits or depositions must set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist.” (40 Stat. at L., 228; Sections 10052 and 10053, Barnes’ Fed. Code.)
Any federal oases relative to the procedure and the preliminary requirements for a search warrant therefore have no force and effect as authorities in construing the Ohio statutes, or in settling the practice and procedure for a search warrant under the Crabbe act. The acts of congress relating to the procedure in obtaining search warrants under the revenue laws, and under the laws relating to export of arms and munitions of war, will be found to be entirely different from the provisions relating to search warrants under the Volstead act. .The difference in those provisions is significant as showing that the entire subject of obtaining the issuance of a search warrant is left to the sound discretion of the legislature, circumscribed only by the constitutional requirement that the warrant shall only issue
Only one further question remains to be discussed, viz., whether in any case where liquors have been seized, whether lawfully or unlawfully, whether by virtue of a search warrant or not, and, if by virtue of a search warrant, whether the process has been regular or not, the persons from whom such liquors have been taken have a right to demand the return of the liquors before trial, and whether the liquors can under such circumstances be admitted as evidence on the part of the state.
Section 6212-16, General Code, provides that “it shall be unlawful to have or possess any liquor, or property designed for the manufacture of liquor, intended for use in violation of law or which has been so used, and no property rights shall exist in any such liquor or property
It will therefore be seen that the possession constitutes the offense, and placing the contraband property back into the possession of the accused would only have the effect of rendering him again guilty of an offense. It is very evident that counsel for the accused in all of these cases fully appreciates this fact because the opening statement in each and all of the petitions for return of property contains this significant allegation: “Now comes the defendant and disclaiming knowledge and ownership of the goods hereinafter described, states,” etc. It may be inquired upon what principle of law a court is required to order the return of property to a person who disclaims ownership or even knowledge of the goods. The procedure which has been approved by the supreme court of the United States
The courts of many of the states of the Union have had occasion to deal with this exact question, and in more than a score of the states it has been emphatically declared that intoxicating liquors, stolen property, gambling paraphernalia, burglar’s tools, narcotic drugs, counterfeiting devices, lottery tickets, and' other lands and classes of contraband property, the mere possession of which constitutes an unlawful act, may not be ordered returned, even though such property has been taken without lawful process from persons accused of crime; and in only three or four states has a contrary rule been declared. To enter upon a discussion of all of these cases, or even to give a list, of them, would extend this opinion to unreasonable proportions. In those states where a contrary rule has been declared it appears that they have attempted to- follow an erroneous interpretation of certain decisions of the supreme court of the United States. Before pro
The earliest federal supreme court case is that of Boyd v. United States, 116 U. S., 616, decided in 1886. In that case it was decided that documents of a perfectly lawful nature, but which were nevertheless evidence of crime, which had been obtained by unlawful seizure, were not admissible in evidence. That principle was not disturbed until 1904 when the supreme court reversed the doctrine in the case of Adams v. New York, 192 U. S., 585. In 1914 the same court decided the ease of Weeks v. United States, 232 U. S., 383, in which the court again returned to the doctrine declared in the Boyd case. The Weeks case has been followed in Silverthorne Lumber Co. v. United States, 251 U. S., 385; Gouled v. United States, 255 U. S., 298; and Amos v. United States, 255 U. S., 313. Each and all of these cases related to property which anyone might lawfully have in his possession, and it was only in the Amos ease that the property consisted of intoxicating liquors. The Amos ease was decided entirely upon the theory' of the Gouled case, without any discussion of principles. It might therefore seem on a superficial examination of that case that it was intended to make all intoxicating liquors subject to the same rule as papers and other lawful property.
The latest case which has been called to our attention, in which this distinction is clearly made, is O’Connor v. United States, 281 Fed. Rep., 396, decided by the district court of New Jersey, June 17, 1922, sixteen months after the Amos case was decided. From the opinion in that case, page 397, we quote: ‘ ‘ The petitioner invokes the Fourth Amendment to the United States Constitution, and cites Weeks v. United States, 232 U. S., 383, * * * Silverthorne Lumber Co. v. United States, 251 U. S., 385, * * * and Amos v. United States, 255 U. S., 313, * * * in support of his contention that these liquors were illegally taken. But neither this amendment nor the cited cases are applicable to the facts of this case.” After quoting the 4th Amendment, which is in all respects identical with the language of Section 14 of the Ohio Bill of Rights, the learned judge proceeds: “It is to be construed in conformity with basic principles of the common law, which were familiarly known to the framers of the
“In Weeks v. United States, * * * and Amos v. United States, * * * the defendants’ respective homes were entered and searched, and certain of their properties (relevant evidence on the charges against them) seized, without a search warrant. These respective properties were subsequently used as evidence against them in a trial which resulted in their conviction. In Silverthorne Lumber Co. v. United States, 251 U. S., 835, * * * the defendants had been adjudged in contempt for refusing to obey an order of court ‘to produce [certain] books and documents of the company before the grand jury to be used in regard to alleged violation of the statutes of the United States’ by the said defendants. * * *
“These eases are of a different type than the instant case, In the Weeks and Amos cases, the seizures were made in the defendants’ private dwellings. In the Weeks and Silverthorne cases private books and papers were seized for the purpose of evidence only. In the instant ease the things seized, in the circumstances in which they were found, were contraband, stripped of any private rights therein. In this respect the property seized was of an entirely different character from that involved in the three cases last mentioned.
“The books and documents in the Weeks and Silverthorne cases were not forfeitable to the government. If they had been legally seized, the government would have been entitled to' only the temporary possession thereof, and that only for evidential purposes. And the liquors in thé Amos case, having been seized in the private dwelling of the dePage 460fend ant, without warrant, presumptively continued in his private ownership
I repeat that it is unnecessary to discuss the numerous eases which agree with the views herein expressed, but it should be stated that the opinion of Baker, J., in United States v. Snyder, 278 Fed. Rep., 650, contains an excellent discussion, and the opinion of Sloane, J., in People v. Mayen, 205 Pac. Rep. (Cal.), 435, is equally cogent. Many constitutional and statutory safeguards have been provided to insure that persons accused of crime shall have a fair and impartial trial, and these safeguards apply to matters of form as well as substance; but neither the laws nor the courts are solicitous to aid persons accused of crime in concealing the evidence of their guilt. Many presumptions are indulged in favor of accused persons, and a strong measure of proof is required as to every material fact necessary to establish the guilt of the accused. But such indulgences do not reach to the extent of rejecting competent evidence because of the method by which it was procured. In the case of People v. Mayen, supra, the court made the following observation upon this subject:
“From the necessities of the case the law countenances many devious methods of procuring evidence in criminal oases. The whole system of espionage rests largely upon deceiving and trapping the wrong-doer into some involuntary disclosure of his crime. It dissimulates a way into his confidence; it listens at the keyhole and peers through the transom light. It is not nice, but it is necessary in ferreting out the crimes against society which are always done in darkness and concealment.
Page 461“Thus it is that almost from time immemorial courts engaged in the trial of a criminal process have accepted competent and relevant evidence without question, and have refused to collaterally investigate the source or manner of its procurement, leaving the parties aggrieved to whatever direct remedies the law provides to punish the trespasser, or recover the possession of goods wrongfully taken.”
In those cases holding to the opposite view it is urged that to use the evidence would be tantamount to compelling the accused to be a witness against himself, thereby violating the 5th Federal Amendment. That amendment has no relation to state criminal procedure, but the same provision is found in Section 10 of the Ohio Bill of Bights, and the proposition therefore challenges our attention. Whatever might be said of using evidence which the accused is entitled to again have lawfully in his possession, the principle can have no application to those cases where the possession constitutes the offense. The accused could only be the unwilling source of the evidence if the contraband property had been placed in his possession against his will. If he is willing to possess liquor he must be said to be the willing source of the evidence. He is only the unwilling source of the evidence if unwilling to possess the goods, but in this event he cannot be guilty at all.
All that has been said on this latter question can have no relation to liquors lawfully possessed in the home, and if liquor should be taken from a bona fide dwelling, without process, or by unlawful process, such goods should be returned to the accused before the trial. But in those cases where there is
There has been a great deal of misguided sentiment foisted upon a patient people during these latter days about the constitutional rights and privileges of the criminal classes. If all the doctrines which are being urged by attorneys representing liquor law violators should be adopted by the courts as the true interpretation of our sacred bill of rights, it would no longer be recognized as a charter of government and as a guarantee of protection of the weak against the aggressions of the strong, but rather as a charter of unbridled license and a certificate of character to the criminal classes.
The Federal Bill of Rights, found in the first ten amendments of the Federal Constitution, was designed for the protection of the people against the encroachments of tyrannical government, but it is now sought to interpret it as a shield of law viola.tors from the enforcement provisions of statutes • which are concededly valid. The Volstead act has been pronounced valid and.constitutional by the supreme court of the United States, and no one doubts the correctness of that judgment. The Crabbe act in Ohio, supplemented by the Miller act, is in most respects identical with the provisions of the Volstead act, and is universally accepted by the bench and bar of Ohio as a valid enactment pursuant to the express power to enact appropriate legislation to enforce the provisions of the amendments. While it is firmly established that the enforcement laws are valid, the actual enforcement is claimed to be prohibited by other constitutional guarantees unless
Judgments affirmed.