State v. Miller ( 1922 )

Mitchell, J.

On December 11, 1921, deputy sheriffs, engaged in official business, came upon the def end-ant apparently asleep in a disabled anto truck on the highway near Davenport, Washington. Noticing his condition, the officers stopped to inquire. While one of them aroused the defendant, the other one, standing by the truck, observed it contained a large quantity of whiskey. The officers arrested the defendant and took charge of the truck and its contents. Upon an information charging the defendant with the crime of being a bootlegger, he was tried and found guilty by a jury of unlawfully having intoxicating liquor in his possession. From a judgment on the verdict, an appeal has been taken.

The first assignment of error is, (1) the denial of appellant’s motion, before the beginning of the trial, for the return of the whiskey, claimed to have been taken by the officers without authority of law, and (2) allowing it to be received'in evidence over his objection that it had been seized without a search warrant and in violation of his constitutional rights. As to the first, on the authority of State ex rel. Yakima v. Superior Court, 120 Wash. 280, 206 Pac. 925, the application was properly denied. Concerning the second, we are not called upon to decide if the whiskey was admissible in evidence if it be assumed the officers got possession of it by a trespass, for in this case there was no trespass. It requires a warrant to seize only in those instances where the seizure is assisted or reached by a necessary search. The constitutional provisions invoked by the appellant do not prohibit a seizure without a warrant where there is no need of a search and where contraband subject-matter or unlawful possession of it is fully disclosed and open to the eye and hand. State v. Llewellyn, 119 Wash 306, 205 Pac. 394; State v. Quinn, 111 S. C. 174, 97 S. E. 62, 3 A. L. R. 1500.

The statute upon which this case was prosecuted was enacted by the legislature of 1917. Chapter 19, p. 46, Laws of 1917; Rem. Comp. Stat., 7312. It was an amendment of initiative measure No. 3, adopted by popular vote in November, 1914, and the contention is now made that the amendment was earlier than permissible under the terms of subdivision “g” of the initiative and referendum provision of the seventh amendment to the state constitution. A similar contention has been answered otherwise in the case of State v. Gibbons, 118 Wash. 171, 203 Pac. 390.

Further, it is claimed the state law is repugnant to, and has been superseded by, the eighteenth amendment to the Federal constitution and the Volstead act enacted pursuant thereto. We have repeatedly held to the contrary. State v. Jewett, 120 Wash. 36, 207 Pac. 3, and cases cited.

Finding no error in the record, the judgment appealed from is affirmed.

Parker, C. J., Fullerton, Tolman, and Bridges, JJ., concur.