State v. . McGee , 214 N.C. 184 ( 1938 )

DEVIN, J., dissenting.

STACY, C. J., concurs in dissent. This is a criminal action in which the defendant was tried under a bill of indictment charging the defendant with the unlawful possession of nontax paid liquor for the purpose of sale. Officers went to the premises of the defendant, took him into custody and searched his dwelling house and outbuildings. They found about twenty gallons of whiskey. There were 19 pint bottles, a 15-gallon keg, two one-gallon kegs and some fruit jars, all containing nontax paid liquor. There was a verdict of guilty. From judgment pronounced thereon defendant appealed. The defendant does not contend that the evidence was insufficient to support the verdict. He challenges the competency of the testimony for that it was obtained as a result of an unlawful search and seizure. This presents but one question for determination: Do the provisions of sec. 1 1/2 of ch. 339, Public Laws 1937, apply to a search without warrant and make evidence thus obtained incompetent?

Under the common law, with few exceptions, such as involuntary confessions, evidence otherwise competent is admissible irrespective of the manner in which it was obtained by the witness. The courts look to the competency of the evidence, not to the manner in which it was acquired. This rule has long been followed in the courts of North Carolina. S. v.Graham, 74 N.C. 646; S. v. Mallett, 125 N.C. 725 (affirmed by the United States Supreme Court on writ of error in Mallett v. North Carolina,181 U.S. 589); S. v. Thompson, 161 N.C. 238, 76 S.E. 249; S. v.Wallace, 162 N.C. 623, 78 S.E. 1; S. v. Neville, 175 N.C. 731, 95 S.E. 55; S. v. Godette, 188 N.C. 497,125 S.E. 24; S. v. Hickey, 198 N.C. 45, 150 S.E. 615. The rule is stated in 1 Greenleaf Ev., sec. 254a, as follows: "It may be mentioned in this place 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 how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question."

However unfair or illegal may be the methods by which evidence has been obtained in a criminal action, if relevant, it is as a rule admissible, provided the accused is not compelled to do any act which criminates himself, or a confession or admission is not extorted from him. Accordingly, evidence obtained by forcibly entering the house of an accused person and seaching [searching] it and the person accused, without any warrant or authority of law, is held not inadmissible to show the possession of articles tending to establish guilt, although the search and seizure may have been unlawful, unwarranted, unreasonable, and reprehensible. 10 R. C. L., page 932, sec. 98.

The courts determine the competency of evidence irrespective of the method by which it was procured. An objection to an offer of proof made on the trial of a cause raises no other question than that of its competency, relevancy and materiality. On such an objection the court cannot enter on the trial of a collateral issue as to the source from which the evidence was obtained, unless expressly required so to do by statute.

The pertinent section of the 1937 law provides: "Any officer who shall sign and issue, or cause to be signed and issued a search warrant without first requiring the complainant or other person to sign an affidavit under oath and examining said person or complainant in regard thereto shall be guilty of a misdemeanor; and no facts discovered by reason of the issuance of such illegal search warrant shall be competent as evidence in the trial of any action."

It is contended that the cited law made the testimony incompetent and inadmissible. We deem the language of the statute insufficient to require that conclusion. It constitutes a modification, and not an abrogation, of the common law rule. Whatever the intent of the Legislature may have been it failed to use language sufficient to extend beyond testimony acquired or discovered by reason, or through the use, of a search warrant issued in violation of the terms of the act. It cannot be given the force and effect of rendering incompetent evidence obtained through a search without warrant. The officers did not purport to act under authority of an illegal search warrant, but elected to proceed without any type of warrant.

As the common law rule of evidence existing in this State is abrogated only to the extent that evidence procured through the use of an illegal search warrant is now inadmissible, the court below properly admitted the testimony tendered by the State. The defendant's exceptions thereto cannot be sustained. The judgment below is

Affirmed.