I concur in the affirmance of the judgment, but not upon the ground nor upon the line of reasoning assigned in the majority opinion. I do not agree that the search of appellant's home without a search warrant was lawful *Page 91 merely because an information charging him with the crime of second-degree assault had been filed against him prior to the time of the search. Nor do I agree that the search was in any sense incidental to the arrest, the search having been made while appellant was confined in a hospital, away from the vicinity of his home, and having been conducted the day after his arrest, and without his knowledge or consent. For these reasons, I think that the pistol, which was uncovered by the search, should not have been admitted in evidence.
The admission of that evidence, however, was not, in my opinion, prejudicial to the appellant's defense. He admitted that he owned a pistol which was of an automatic type, and that he had it with him when he called at the home of the prosecuting witness. The evidence discloses, the verdict establishes, and the majority opinion states that appellant pointed the pistol at the witness and threatened to shoot her. Whether or not the pistol was loaded is wholly immaterial, so long as the witness was put in fear, as she was, by his act and threat. His admissions and the testimony of the state's witnesses were alone sufficient to convict appellant of the crime. His only defense was that the whole affair was a joke. The jury evidently thought otherwise and, in my opinion, was fully justified in coming to that conclusion.
Regardless of the admission of the pistol in evidence, the jurors could not, upon their oaths, and under the instructions given them by the court, have done otherwise than find the appellant guilty of the offense charged. The pistol itself established nothing beyond what the other evidence in the case established, and I am unwilling to believe that the jury was induced to find the appellant guilty of pointing the pistol merely because the pistol was displayed in court at the time *Page 92 of the trial. While appellant does not so state the proposition, his claim of prejudice amounts, in effect, simply to this: If the jury had not seen the pistol in court, it might not have found him guilty even though the evidence warranted no other conclusion; or, further, had the pistol not been brought into court, he might have had the benefit of perjuring himself by denying that he ever owned a pistol or that he had one with him when he went to the home of the prosecuting witness. No such safeguard against conviction of a crime is provided or intended by the criminal law.
I am convinced that, while the admission of the pistol in evidence was erroneous, that circumstance did not, under the facts positively established, constitute prejudice in fact or in law.
For these reasons alone, I concur in the affirmance of the judgment.
JEFFERS, J., concurs with STEINERT, J.