Meisinger v. State , 155 Md. 195 ( 1928 )

On September 19th, 1927, the appellant, George Meisinger, was indicted in the Circuit Court for Cecil County for having in his possession, in said county, intoxicating, spirituous, or fermented liquors, with intent then and there to unlawfully sell the same within the limits of said county, in violation of sections 179 and 180 of chapter 532 of the Acts of 1898. The appellant moved to quash the indictment and, upon his motion being overruled, he pleaded "not guilty." The case was tried by the court, sitting as a jury, and the defendant was found guilty and sentenced to confinement in the Maryland House of Correction for six months. From that judgment this appeal was taken.

In the course of the trial two exceptions were taken to the admission of evidence procured under a search warrant issued by a justice of the peace, at the instance of the state's attorney for Cecil County, directed to the sheriff of that county, to search the premises of the appellant in said county for intoxicating liquors and to seize the same if found.

The question presented for our decision, both by the motion to quash and the exceptions to the evidence, arises from the opposite contention of the parties as to the admissibility of evidence secured under and by virtue of what is conceded to be an illegal search warrant.

This question has been the subject of a great number of decisions by the Supreme Court, the federal courts, and the appellate courts of many, if not all, of the states. These decisions show a great diversity of opinion, and it is impossible to harmonize the opinions or the reasoning employed therein as expressed by the various courts, or even in some instances to show consistency between the decisions of the same court. We find that not infrequently courts, both federal and state, have expressed one view in one opinion, later reversing that decision, and later still returning to the opinion first expressed. In a copious note to the case of State v. Wills, 91 W. Va. 659, 24 A.L.R. 1398, decided in 1922, the annotator has collected the cases supporting each side of this contention, and at page 1409 states: "It is, or at least was, a general rule of evidence that its competency is not affected by the fact that it was wrongfully obtained; or, to state it more fully, that the court in which papers or other articles are offered in evidence can take no notice whether they were lawfully or unlawfully obtained, nor will it frame a collateral issue to determine that question. What is the effect upon this rule of evidence of the rights secured by the Fourth Amendment to the United States Constitution and by the similar provisions in state constitutions? Up to within a few years there were but few cases in which the constitutional right had been held to interfere with the rule, but in 1914 the decision by the Supreme Court of the United States in Weeks v. United States, 232 U.S. 383 (infra) held the constitutional rights supreme when asserted before trial, and the later cases in that court in effect hold that the constitutional right is to be recognized though first asserted at the trial." Since these decisions of the Supreme Court, a number of cases in state courts have taken a similar view. The correctness of the position taken in these later cases is denied, and the earlier rule defended, by Professor Wigmore in an article appearing in the American Bar Association Journal, August, 1922, page 479, which article was replied to in the following October number of the same journal by Mr. Connor Hall, each author vigorously contending for the correctness of his view. The authorities are divided into those supporting what may be termed the old doctrine, that is, the rule that such evidence is admissible, and those adhering to the new rule, deciding against its admissibility. Among the former this court is to be found, it having definitely determined that the rule which allows evidence of this character to be admitted is in force for the guidance of the courts and the admission of testimony therein in this state. This conclusion was reached by our predecessors in the case ofLawrence v. State, 103 Md. 17, and must be taken now as conclusive on the question, so far as this state is concerned. It was said in that case: "In the recent and valuable work on Evidence of Professor Wigmore it is affirmed, upon an exhaustive and discriminating review of the authorities, that it is universally conceded that chattels and documents in the possession of an accused party are within the protection of the constitutional provisions in question, if sought to be produced in evidence through process against him as a witness: but if obtained from him otherwise than by the use of such process they are not within the privilege which these provisions confer. 4 Wigmore on Evidence, sec. 2264." The court then adopts the rule as laid down in 1Greenleaf on Evidence, sec. 254, that "though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The court will not take notice of how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question." This statement of the rule has been adopted in the opinion of many of the courts, and may with certainty be denominated the rule more largely adhered to throughout the Union.

In People v. Defore, 242 N.Y. 13, decided in 1926, sustaining the old rule, Judge Cardozo, speaking for the court, said: "The new doctrine has already met the scrutiny of courts of sister states. The decisions have been brought together for our guidance through the industry of counsel. In forty-five states (exclusive of our own) the subject has been considered. Fourteen states have adopted the rule of the Weeks case either as there laid down, or as subsequently broadened. Thirty-one have rejected it. Typical among these are Massachusetts (Comm. v. Wilkins,243 Mass. 356; Comm. v. Donelly, 246 Mass. 507); California (People v. Mayen, 188 Cal. 237); Connecticut (State v.Reynolds, 101 Conn. 224); Ohio (Rosanski v. State, 106 Ohio St. 442) ; Kansas (State v. Johnson, 116 Kan. 58; 116 Id. 179); Iowa (State v. Rowley, 197 Iowa 977, 979); and Virginia (Hall v. Comm., 138 Va. 727). To what is there written little of value can be added. The controversy, starting with the courts, has been taken up by the commentators, and with them has been the theme of animated argument. For the most part, there has been adherence to the older doctrine (4 Wigmore on Evidence [2nd ed.], pars. 2183, 2184; Harno, Evidence Obtained by IllegalSearch and Seizure, 19 Ill. Law. Rev. 303; Knox,Self-incrimination, 74 Penn. Law Rev. 139; Fraenkel, Concerning Searches and Seizures, 35 Harv. L.R. 361, 386. Contra, Chafee, The Progress of the Law, 35 Harv. L.R. 673, 694; Atkinson, Unreasonable Searches and Seizures, 25 Col. Law Rev. 11). With authority thus divided, it is only some overmastering consideration of principle or of policy that should move us to a change. The balance is not swayed until something more persuasive than uncertainty is added to the scales."

The reason upon which the rule rests is that, in the trial of criminal cases, the admissibility of evidence is to be determined by its pertinency to the issue under consideration, and in cases like the one before us the court is not concerned with the collateral question of how such evidence may have been procured. The question of the guilt or innocence of the accused cannot be affected by its method of procurement, if the evidence offered is in itself germane and pertinent to the issue to be decided.

If this case were the first in this court involving the question now under consideration, we would be at liberty to examine and comment upon the authorities and the reasons supporting them in other jurisdictions, but, it having been definitely decided by our predecessors that when evidence offered in a criminal trial is otherwise admissible, it will not be rejected because of the manner of its obtention, we feel bound by that decision, and are entirely content to follow the reasoning therein employed, especially in that it is supported and fortified by the weight of authority elsewhere.

The seizure of the liquor admitted in evidence was unlawful, there being no statute, applicable to Cecil County, authorizing the issuance of a search warrant in cases of this character. The warrant should not have been issued, and the sheriff in serving the warrant was a trespasser. Comm. v. Tibbetts, 157 Mass. 519;People v. Defore, supra. Nevertheless, the liquor so seized was admissible in evidence, under the decisions of this court. Therefore, the judgment appealed from will be affirmed.

Judgment affirmed, with costs to appellee.