Brewer v. State

^* Corpus Juris-Cyc. References: Criminal Law, 16 CJ., pp. 571, n. 93; 874, n. 93 New. Intoxicating Liquors, 33 CJ., pp. 580, n. 14; 606, n. 54. Searches and Seizures, 35 Cyc., pp. 1267, n. 17; 1272, n. 62; On admissibility of evidence obtained by illegal search and seizure, see notes in 24 A.L.R. 1408; 32 A.L.R. 408; On admissibility in evidence against defendant of documents or articles taken from him, see notes in 59 L.R.A. 466; 8 L.R.A. (N.S.) 762; 34 L.R.A. (N.S.) 58; L.R.A. 1915B, 834; L.R.A. 1916E, 715. 10 R.C.L., pp. 931-934; 2 R.C.L. Supp., p. 1112; 4 R.C.L. Supp., p. 679; 5 R.C.L. Supp., p. 573. Olivia Brewer and Nancy Tullos appeal from a joint conviction upon a charge of having possession of a still.

Olivia Brewer lived with her husband, Oliver Brewer, in a house rented by him. Nancy Tullos occupied a part of the house. The officers secured a search warrant to search the house of "John Doe," and with this kind of a warrant entered and searched the premises of the appellants, and there found a small still hidden behind a screen in the fireplace. Oliver Brewer, husband of Olivia Brewer, appellant, was absent from home at the time of the search, and since has fled the country.

The appellant Olivia Brewer stated to the officers that the still belonged to her husband, and that she had nothing to do with it. She also testified that the appellant Nancy Tullos was merely a visitor for the night and knew nothing about the still. Nancy Tullos did not testify nor offer any evidence in her behalf. The testimony thus secured by the search of the private premises was duly objected to upon the ground that the search was without a lawful search warrant. Olivia Brewer denied possession or control of the still, and said that the house was rented by her husband, and that her husband possessed the still which she objected to being on the premises.

The main point presented for reversal is that the evidence secured by the officers was inadmissible because obtained without a lawful search warrant.

We do not hesitate to say that the search warrant authorizing the search of the premises of one "John Doe" was utterly void, and we shall not take the time nor space to set out the manifest reasons for this conclusion.

But the state contends that the conviction should be upheld because the wife, Olivia Brewer, appellant, had not rented the house, and that therefore the house was not her private premises, but was the possession of her husband, and consequently she could not complain about the search of it with a void search warrant. We see no merit in this proposition, because the relation of husband and wife is such that they both possess the premises of the home when living there, regardless of which one may rent it or own it; and therefore a valid warrant was necessary to search the premises thus occupied by the appellant Oliver Brewer, and the testimony was inadmissible as against her, and the court should have sustained the motion to discharge her upon the testimony offered by the state.

As to the other appellant, Nancy Tullos, the testimony offered by the state shows that she was occupying as a residence a part of the house, and that the search of her part of the house was made under the authority of the "John Doe" warrant. Nancy did not testify at all, but objected to the testimony obtained by the unlawful search.

The warrant was void, and the search of that part of the premises occupied and possessed by the appellant Nancy was unlawful, and the lower court should have sustained the objection to the testimony. Certainly the part of the house occupied by Nancy was her private possession, it was her home, and could not be searched without a lawful warrant for that purpose.

Nancy offered no testimony at the trial. Olivia said that Nancy was a mere visitor for the night, and knew nothing about the still. If this testimony was true, then Nancy should have been acquitted; but, if the testimony offered by the state was true — that is, that Nancy rented and occupied the part of the house in which they found her — then the testimony of the officers was incompetent as to Nancy, because it was secured without a search warrant to search her premises, and therefore, in either case, Nancy should have been discharged.

We have reviewed the numerous decisions cited by counsel on either side, and we think the conclusions reached above are in accord therewith. The judgment of the lower court is reversed, and the case remanded.

Reversed and remanded.