State v. Quinn , 111 S.C. 174 ( 1918 )

October 8, 1918. The opinion of the Court was delivered by Indictment for unlawfully transporting liquor in Greenville county; verdict of guilty; appeal by the defendants.

There are five exceptions, reduced to three questions in the appellants' brief: (1) Verdict ought to have been directed for defendants; (2) the Court charged on the facts; (3) the act of 1914 (28 Stats. 754) is in violation of the State and Federal Constitutions. Let the exceptions be reported. The prime contention of the appellants is that liquor was discovered by an illegal search of the defendants, and that the case is thus brought within the late case ofTown of Blacksburg v. Beam, 104 S.C. 146, 88 S.E. 441, L.R.A. 1916e, 714.

Facts make a case; there is no such thing as law separable from facts. There were two witnesses, both for the State.

The testimony of Gossnell shows this transaction: The place was on the Buncombe road, running north out of the city of Greenville, and where that road and the track of the Southern Railway cross. Gossnell and Beamlett were rural policemen, and had passed north up the Buncombe road about three miles, at which point they met the defendants, Quinn, Ballew, Lee, Vaughn and Beasley, in a Ford car going south towards the city. The officers turned around and also moved south, following the Ford car. At the crossing of the highway and the railway the Ford car had been halted, as were the policemen, too, by a passing freight train. The policemen alighted from the car and stood the one on one side and the other on the opposite side of the Ford car. Ballew was driver of the Ford car, and Quinn sat by him. The three others were on the back seat, and those three were drunk. The officers found on the back seat a full quart of whiskey, and Beamlett picked up a full quart of whiskey down about the front where Ballew sat. Quinn had something in his hands, holding it down between his legs, and Gossnell pulled it out, and it was a quart bottle of whiskey full. At that stage the arrest was made.

The testimony of Beamlett shows this transaction: The policemen alighted at the crossing and walked one on one side and one on the other side of the Ford. The occupants of the Ford car were all under the influence of liquor, save Ballew, and two of them were drunk to helplessness. This policemen found one quart in the back of the car at the feet of Lee.

The defendants offered no testimony. It is true both policemen testified in ipsissima verba that they stopped and "searched the persons" of the occupants of the car, and that they had no warrant issued to them by an officer which empowered them to do so. But whether there was a "search" depends upon what was said and done by the officers at the time and place, and not upon the words with which they have characterized their acts.

The facts which we have recited, and about which there is no dispute, show that there was no arrest made until the liquor was discovered in the Ford car by the officers. And the facts show, also, that there was certainly no "search" of the persons of the occupants of the Ford car to discover the liquor. On the contrary, while the Ford car was at rest, waiting for the passage across the highway of the freight train, the policemen also came to a stop, and, disembarking from their car and looking, saw some of the liquor unconcealed in the Ford car.

It will not be denied that, had the officers come by chance upon the Ford car, manifestly loaded with whiskey and being transported for unlawful use, in such a case a seizure of liquor and an arrest of the conveyors would have been lawful, and that without a warrant to arrest or a warrant to seize. The instant case is essentially none other than that supposed.

The Constitution prohibits absolutely unreasonable searches, and it prohibits any search save upon a warrant duly issued. It requires a warrant to seize only in those instances where the seizure is assisted by a necessary search. It does not prohibit a seizure without warrant where there is no need of a search, and where the contraband subject matter is fully disclosed and open to the eye and hand. Article I, sec. 16.

There was no search in the instant case, for search implies invasion and quest, and that implies some sort of force, actual or constructive, much or little. The provision of the Constitution now considered was adopted to save a citizen's person and his house from invasion by some sort of force, except the invasion is had in the most guarded way. See State v. Wimbush, 9 S.C. 313, and the opinion of Simonton, J., in Bound v. S.C.R.R. (C.C.), 57 Fed. 485.

We do not find so much in the books, but that some force must be exercised is evident from the history of the constitutional provision; and that is the necessary implication of the words of the Constitution, of the statute, and of the decisions. There is a luminous discussion of the history of search and seizure by Mr. Justice Bradley in Boyd v.United States, 116 U.S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746. See, also, Cooley's Const. Law (4th Ed.), p. 367.

The undisputed testimony in the instant case shows there was no exercise of any sort of force, but, on the contrary, the condition was manifest to him who had eyes to see. The case is largely governed by what was decided in State v.Byrd, 72 S.C. 109, 51 S.E. 544. It was there held:

"Under section 16 of article I of the State Constitution which protects the citizen from unreasonable seizure of his person or property, there is no doubt a limit to the power of the General Assembly to authorize arrest of the citizen without warrant; but we do not think that limit has been reached when an officer is required to arrest without warrant one whom he discovers in the act of violating the criminal law." (Italics have been supplied.)

The next issue arises out of what the Court said, not in the charge, but when it ruled against the formal motion for the direction of a verdict. It has been held more than once that it is not unlawful for a trial Court to state testimony about which there was no dispute. In the instant case the Court said: "The testimony tends to show * * * that upon information communicated to them they (the policemen) went out for the purpose of finding the defendants; that the defendants were in an automobile drunk on the public highway and at the time seeing their automobile in excess of the legal rate of speed; that as soon as the opportunity was presented they made a search of the automobile in question and found the liquor which had been offered in evidence * * * whereupon they were arrested and taken to jail."

The motion for a directed verdict was in its nature a demurrer to the evidence, and, therefore, a quasi admission of the truth.

The third issue made by the appeal involves a testing of the act of 1914 (28 Stats. 754) when laid by the side of the State Constitution; for as no Federal question is involved the Federal Constitution has no relevancy. The suggestion of the appellant is that sections 2 and 3 of that act violate the due process clause of the State Constitution (article I, sec. 5), and also the search and seizure of the same instrument. (Article I, section 16.) These subjects are akin, and the issues will be considered together. The statute is to be judged, of course, with reference only to the facts of the instant case; if, when applied to those facts, it conforms to the superior rule of the Constitution, then no fault is to be found with it.

The second section of the statute deals, inter alia, with seizures, and it does empower police officers "to seize without warrant * * * all alcoholic liquors in the possession of any person for unlawful use." It does not authorize a search of a man's person or his house without a warrant. In the instant case the seizure was made without warrant to seize; but so much was lawful because, as before stated, there was no search necessary and none was made.

The third section of the statute deals, inter alia, with arrests, and it does empower police officers, "for any freshly committed crime to arrest without warranty." The subject of "arrest of the person" is not mentioned in the State Constitution save in three instances not relevant here. Article II, section 14; article III, section 13; article XIII, section 2. The due process clause of the Constitution, however, protects the citizen from unlawful arrests.

By the common law (that law which due process guarantees) a citizen may be arrested without warrant who is discovered in the act of violating the law. City v. Payne, 2 Nott McC. 475; State v. Sims, 16 S.C. 486. In the instant case the defendants were discovered flagrante delicto; they were in the very act of transporting contraband liquor.

We are, therefore, of the opinion that, when applied to the facts of the instant case, no fault can be found in the statute in the respects indicated.

The judgment of the Circuit Court is affirmed.

MR. CHIEF JUSTICE GARY, and MESSRS. JUSTICES HYDRICK and FRAMER concur.

MR. JUSTICE WATTS. I dissent, and think judgment should be reversed.