Zimmerman v. Town of Bedford , 134 Va. 787 ( 1922 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

So far as material to the decision, the questions raised by the assignments of error will be disposed of in their order as stated below.

The evidence for the Commonwealth, consisting of the nine pints of brandy and the container which appeared to have had whiskey in it, obtained by means of the execution of the search warrant, and the testimony for the Commonwealth of the officers on the subject of what they saw and heard while executing the search warrant, was, in the trial court and is before us, all objected to on the part of the accused on the grounds that it was obtained by means of an illegal search warrant, in this, that the search warrant is of the character prohibited by section 10 of the Virginia Constitution, and that the affidavit therefor does not comply with the requirements of the statute law of Virginia on the subject.

If these positions were well taken it would be necessary for us, in view of other assignments of error, to further consider whether the illegality of the method by which the evidence in question was obtained, or the provisions in section 8 of the Virginia Constitution, to the effect that no man “shall be compelled in any criminal proceeding to give evidence against himself,” rendered the evidence inadmissible against the accused. But as in our opinion, which will be presently more specifically set out, the positions first above referred to are not well taken, it will be unnecessary for us to enter upon the further consideration mentioned.

We shall therefore first take up for decision the question:

1. Is the search warrant involved in the instant case a general warrant of search or seizure prohibited by section 10 of the Virginia Constitution; or one which does not comply with the requirements of the Virginia statute, chapter 345, Acts 1920, and of section 22 of chapter 388, Acts 1918, with respect to the affidavit on which it was issued?

The question must be answered in the negative.

What are the “general warrants” of search or seizure forbidden by the section of the Virginia Constitution mentioned, the history of occurrences in the American Colonies and in England during the eighteenth century, in the matter of the issuance and execution of search warrants, discloses. Among those occurrences were the following:

In the Colonies writs of assistance to revenue officers were issued empowering them, in their discretion, to search suspected places for smuggled goods. In England the Secretary of State, Lord Halifax, issued a warrant, directed to four messengers, to apprehend and seize the printers and publishers of a paper called the “North Briton,” without any information or charge laid before the Secretary of State previously to the issuance of the warrant, and without naming any person whatsoever in the warrant. These proceedings gave rise to great public dissatisfaction, to debates and resolutions in the House of Commons, and to decisions of court condemnatory of “general warrants.” Money et als v. Leach, 3 Burr. 1766; Huckle v. Money, 2 Wils. Rep. 205; Entick v. Carrington et als, 19 How. St. Trials 1029; Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 749-751. As said by Lord Mansfield, in Money et als v. Leach: “It is not fit that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge and should give certain directions to the officer.” The features of what then became known as “general warrants” of search and seizure and which fell within the aforesaid condemnation of them were that they were issued (1) without any evidence of fact furnished previously to the issuance, or (2) they did not designate any specific place to be searched, or any specific thing or person to be seized, or (3) particularly describe the offense claimed to have been committed. Section 10 of the Virginia Constitution itself defines what are the general warrants within its meaning, and that definition contains merely the characteristic features just mentioned. Both this provision of the Virginia Constitution and the fourth amendment of the Federal Constitution have the same general object, namely, the prohibition of “general warrants” of search and seizure, but the latter is somewhat more specific in the requirements which it makes essential to the validity of search warrants. There are numerous decisions construing the latter requirements, to the effect that, although the warrant itself need not do so, the evidence upon which the warrant is issued must state specific facts sufficient to show probable cause for the issuance of the warrant; whereas there is no decision of this court, to which we have been cited or of which we are aware, construing the language of the Virginia Constitution under consideration. It may be that with respect to the feature (1), above referred to, the Virginia constitutional provision means to render the search warrant invalid only where it is issued without any evidence of fact whatever on which it is granted, and leaves it to the legislature to provide in the enactment authorizing such warrants what character of evidence is requisite, as, for example, that the warrant may issue “upon complaint and information given under oath * * * that affiant has cause to believe and does believe” the requisite facts, as was provided in section 4612 of the Code; and not to require the affidavit to state the facts constituting the reasons for such belief, as does chapter 345 of Acts of 1920, or that the complaint on oath shall satisfy the officer issuing the warrant that there is reasonable cause for such belief, as does the aforesaid statute of 1918. The requirement of these two statutes in the particular under consideration is, however, practically identical, and is the same requirement as that, in substance, contained in the fourth amendment to the Federal Constitution. That being so, and in view of the contents of the affidavit in the instant case, it is unnecessary for us to decide whether there is any difference between the requirements of the Virginia and Federal Constitutions in the particular just mentioned. The affidavit contains “the material facts, constituting the probable cause” for the issuing of the warrant, required by the statute of 1920 and the facts relied on by the Commonwealth as sufficient to have satisfied the officer issuing the search warrant that there was “reasonable cause” for issuing the warrant, required by the statute of 1918, in this: It states that the affidavit is based on the personal observation of the affiant of the place designated and of the nature of the people going in and out of the premises. And these facts are in their character convincing evidence of the existence of probable cause (which is the same thing as reasonable cause) for the issuance of the search warrant.

It is urged that in view of the testimony of the accused that R. E. Light, who made the affidavit, was a stranger in town and had only been there two days prior to swearing out the warrant, and had never come to the house of the accused and did not know the people who boarded or came there, rendered the affidavit worthless as evidence. We do not think so. These facts, if true, merely partially affected the weight to be given to and did not entirely destroy this evidence. One who is a close observer of such matters may be very reliable as to conclusions drawn from personal observation for two days of those going in and out of premises, although he may not know personally the persons observed. The evidence on which the issuance of a search warrant is based, under the 1920 and 1918 statutes aforesaid, does not have to be sufficient to establish the fact that the thing sought is on the premises, but merely that the belief of the person making the affidavit that it is there is based on facts which furnish a probable or reasonable cause for such belief.

The next question for our decision raised by the assignments of error is this:

2. Bid the town of Bedford have the authority to adopt the ordinance under which the conviction was had in this ease, so as to make the ordinance valid?

Section 4617 of the general law conferred the authority upon the town to adopt the ordinance, so that the question must be answered in the affirmative.

The position is taken in argument for the accused that to so hold is to hold that the existing charter of the town has been amended by general legislation, whereas it is contended that section 117 of the Virginia Constitution “prohibits the amendment of existing charters except by special legislation.” There is a two-fold error in this position. In the first place, for the legislature, by general law, merely to confer upon towns powers in addition to their charter powers, does not amend their charters. Secondly, section 117 of the Constitution expressly provides that “general laws for the organization and government of cities and towns shall he enacted by. the General Assembly * (Italics supplied.)

But one other question raised by the assignments of error remains for our decision, and that is this:

3. Was there sufficient evidence to support the conviction of the accused of the ofíense of having in his possession ardent spirits for the purpose of sale?

The question must be answered in the affirmative.

It is urged in behalf of the accused, with much force, upon the authority of Neal’s Case, 124 Va. 842, 98 S. E. 629, that the prima facie presumption of guilt which would have arisen under the ordinance from the unexplained possession by the accused of the nine pints of brandy, did not arise in the instant case; because the Commonwealth’s own evidence of the possession, disclosing the declaration of the accused, whieh explained that the possession was for the use of his wife, and the uncontradicted evidence for the accused to the same effect, repelled such prima facie presumption.

And this position would doubtless be sóund if the Commonwealth in this ease had introduced no other evidence than that showing the possession of the brandy. As a matter of fact, however, the Commonwealth did introduce other evidence, namely, the testimony of the officers that there was “found by a tin sink a five-gallon jug that appeared to have been recently washed out and it smelled as if there had recently been whiskey in it; sink also smelled of whiskey, and the room smelled of liquor.” That one of the officers “said this,” because he stuck his fingers “into the mouth of the jug and they smelled of whiskey, the sink and the whole room also smelled strongly of whiskey.” That the officer “examined the sink closely.” That he then went down into the basement, and found “empty containers, which showed that they had recently had whiskey in them.” And the testimony to the effect that the accused was seen talking to his wife in the hall while the officer who found the brandy was waiting in the room for the keys to the wardrobe therein in which the brandy was; and that the wife and son “turned and went up stairs.” That the wife “ran up the steps and met one of the boys coming down and told him something * * and he wheeled back and ran up the steps,” etc. Then there was the testimony of the accused denying that any whiskey was poured out of the five-gallon jug aforesaid, and stating that this jug was used for the sole purpose of keeping buttermilk in it for the boarders, which was false, if the testimony for the Commonwealth was true; and the fact that accused gave no explanation of the empty containers found in the basement, “which showed that they had recently had whiskey in them.”

In view of such testimony for the Commonwealth and what the trial judge, sitting as a jury, must have regarded as the false testimony of the accused, and which therefore we must so regard, there was ample evidence to support the conviction in question. The conviction does not rest upon the prima facie presumption aforesaid; but finds its support in the affirmative evidence for the Commonwealth and in the legitimate inference of guilt which the trial judge, who heard the witnesses testify, was justified in drawing from what he regarded as the false testimony of the accused.

The judgment under review must be affirmed.

Affirmed.