finding fewer protectionsSummary of this case from State v. Thierbach
Decided May 27, 1936.
Constitutional law — Unreasonable searches and seizures and self-incrimination — Federal constitutional amendments inapplicable to state — Articles IV and V, Amendments to U.S. Constitution — Immunity against search of dwelling not waived by wife, when — Section 14, Article I, Ohio Constitution — Officer unlawfully making search and seizure amenable to trespass action, when — Evidence obtained by unlawful search competent against accused, when — Suck evidence not to be suppressed or excluded, when — Immunities against self-incrimination or searches and seizures not violated, when — Unlawful possession of cartridges and bombs — Section 5903-19, General Code — Indictment sufficiently states offense, when.
1. The Fourth and Fifth Amendments to the Constitution of the United States, prohibiting unreasonable searches and seizures and compulsory self-incrimination, are directed exclusively against the activities of the Federal Government and have no application to the various states and their agencies.
2. Assuming that a wife in the absence of her husband may waive his constitutional immunity against search of his dwelling as granted by Section 14, Article I, of the Constitution of Ohio, such waiver cannot be said to have occurred where the testimony as to the wife's assent is conflicting, and there is a probability that any assent given was by reason of the coercive influence of an officer or officers of the law.
3. An officer of the law who makes search and seizure in a dwelling or other premises, without a warrant or with an illegal warrant, in contravention of Section 14, Article I, of the Constitution of Ohio, is a trespasser, and amenable to an action for such trespass.
4. In a criminal case, evidence obtained by an unlawful search is not thereby rendered inadmissible, and, if otherwise competent and pertinent to the main issue, will be received against an accused.
5. An application or motion to suppress or exclude such evidence made before trial or during trial is properly denied. The court need not concern itself with the collateral issue of how the evidence was procured. (Fifth paragraph of the syllabus of Nicholas v. City of Cleveland, 125 Ohio St. 474, and Browning v. City of Cleveland, 126 Ohio St. 285, overruled.)
6. The immunities from compulsory self-incrimination and unreasonable searches and seizures given by Sections 10 and 14, respectively, Article I, of the Constitution of Ohio, are not violated by the denial of such application or motion, and the admission of such evidence.
7. An indictment charging that one "unlawfully did have in his possession and under his control certain cartridges and bombs, intending to use the same, or cause the same to be used for an unlawful purpose," sufficiently states an offense under Section 5903-19, General Code.
ERROR to the Court of Appeals of Cuyahoga county.
A Grand Jury of Cuyahoga county returned an indictment against Mike J. Lindway, charging that on or about March 27, 1935, he "unlawfully did have in his possession and under his control certain cartridges and bombs, intending to use the same, or cause the same to be used for an unlawful purpose contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio."
Defendant entered a plea of not guilty, and before trial filed a written application in the Court of Common Pleas for an order suppressing the evidence obtained by the state in the search of his dwelling, because the same was unlawfully obtained without a warrant.
The court denied the application, to which ruling an exception was taken.
It appears from the evidence that the defendant, his wife and a roomer occupied the lower floor and a part of the basement of a two-family dwelling house in the city of Cleveland. Having received information that the defendant was engaged in the night-time bombing of the homes of employees of a manufacturing company for which he had formerly worked as a machinist, and that his home contained evidence of such activities, Lieutenant Gloeckner, of the Cleveland Police Department, with two brother officers, all in plain clothes, called at defendant's residence on the afternoon of March 27, 1935, during his absence. Pursuant to a summons, defendant's wife came to the front door and was confronted by the three policemen. There is a conflict in the testimony as to what then occurred. Lieutenant Gloeckner testified that he identified himself and his companions as police officers, that he told Mrs. Lindway they had been advised of the presence of explosives, guns and ammunition in the house, and that she denied the existence of such a condition and stated that if the officers were not satisfied they might come in and look for themselves.
Mrs. Lindway, on the contrary, testified that upon opening the door one of the three men encountered displayed a badge and said "From headquarters," and that all three thereupon entered the house without further ceremony.
It is clear from the evidence, and is conceded, that the officers had no warrant, but proceeded to make a search notwithstanding.
Behind an ice box in the kitchen an unloaded rifle was found. Discovered in a bedroom was a loaded .38 caliber revolver in a holster, and an unloaded shotgun. In the clothes closet off the bedroom an automatic pistol, loaded, and a black-jack were brought to light. Some shotgun and small arms ammunition was also uncovered on the first floor.
The officers next descended to the basement and began investigation of an enclosed compartment with a lock on the door, utilized by the Lindways. It was electrically lighted and fitted out quite completely as a workshop, with a bench and vise. In addition it was used for the storage of coal, preserves, potatoes and other provisions. There were a number of mechanics' tools of different descriptions, including an electric drill; also some pieces of metal pipe and elbows, a quantity of cartridges and bullets of various sizes, completed and in the process of completion, a bullet mold, a contrivance for assembling cartridges, some yellow and white fuse, an automatic pistol, a crudely made tear gas pistol and a tear gas shell.
Wrapped in a newspaper underneath some tools were two completed bombs made of metal pipe, with freshly oiled screw caps in place at the ends to form enclosures. One contained a whole stick of dynamite and the other a half stick. A detonator cap was embedded in each piece of dynamite with fuse attached, the fuse extending out of the pipe through drilled holes.
Expert testimony was introduced to the effect that the dynamite was of high explosive quality, having a nitroglycerine content of 23 per cent, and that the bombs as constructed were extremely dangerous and capable of causing very material damage.
Defendant did not take the witness chair, but Lieutenant Gloeckner testified that in a conversation had with him he admitted fabricating the bombs.
Immediately after the state called the first witness to maintain its case in chief, defendant moved that the evidence be arrested and the jury instructed to return a verdict of not guilty, for the reason that the indictment stated no offense through failure to include the words "charged or filled with one or more explosives," immediately following the words "cartridges and bombs," in conformity with the statute under which the indictment was drawn (Section 5903-19, General Code).
This motion was overruled on the grounds that the indictment as returned sufficiently alleged an offense, and that the defendant had failed to take advantage of the means afforded by statute to complain of imperfections therein.
Upon application, the state was permitted to amend the indictment by inserting the quoted words.
Defendant was convicted and sentenced to the penitentiary. He prosecuted error to the Court of Appeals, which court, two judges concurring and one dissenting, reversed the judgment below solely "for error in overruling motion to suppress as the evidence was obtained by unlawful search," and remanded the case for further proceedings.
The state filed a motion in this court for leave to file a petition in error, and defendant filed a motion asking for leave to file a cross-petition in error. The state also filed a petition in error as of right, and the defendant filed a cross-petition of identical character. Both the petition and the cross-petition being allowed to stand, a decision of the case on its merits is required.
Mr. Frank T. Cullitan, prosecuting attorney, Mr. Neil W. McGill and Mr. Thomas A. Burke, for plaintiff in error.
Messrs. Wolf Kruchkoff and Mr. J.W. DeCumbe, for defendant in error.
Defendant was indicted under Section 5903-19, General Code, the pertinent part of which reads: "Any person who shall have in his possession or control any cartridge, shell, bomb or similar device, charged or filled with one or more explosives, intending to use the same or cause the same to be used for an unlawful purpose, * * * shall be deemed guilty of a felony * * *. The possession or control by any person of any such device so charged or filled, shall be deemed prima facie evidence of an intent to use the same, or cause the same to be used, for an unlawful purpose."
Contending for a reversal of the judgment of the Court of Appeals and an affirmance of that of the Court of Common Pleas, counsel for the state advance several arguments. In deciding this case we find it necessary to examine but two, which we place in the following order:
1. The entry and search of defendant's dwelling were made at the invitation of his wife, which effected a waiver of any constitutional protection he might otherwise have claimed;
2. The cartridges and bombs discovered were contraband under the law, and their admission in evidence was not dependent upon their seizure under a valid warrant authorizing such action.
Since the constitutional barrier to unreasonable searches and seizures is in the nature of a personal privilege, it is questionable if it may be waived by anyone except the person whose rights are invaded. A conflict of authority exists as to whether such waiver may be made by the wife of the one who is involved, in his absence, with the weight of authority against it. Underhill's Criminal Evidence (4 Ed.), Section 800, pages 1456, 1457; Cornelius on Search and Seizure (2 Ed.), Section 24, page 71; 56 Corpus Juris, 1182 and 1183; 24 Ruling Case Law, 723; 58 A. L. R., 740.
But assuming defendant's wife possessed such authority, unexpectedly faced by the coercive influence of three law officers, such assent as she may have given to the search, particularly in view of the conflicting testimony thereon, lacked the spontaneity and attributes of an invitation, and was therefore insufficient to constitute a waiver. Amos v. United States, 255 U.S. 313, 41 S.Ct., 266, 65 L. Ed., 654; Duncan v. Commonwealth, 198 Ky. 841, 250 S.W. 101, a case directly in point.
The second contention, outlined above, is predicated upon certain decisions of this court, to be noted later, involving principally the so-called "Crabbe Act" (Section 6212-13 et seq., General Code, 108 Ohio Laws, Part 2, 1182), relating to the unlawful possession of intoxicating liquor, etc., which was repealed prior to the commission of the alleged crime charged to the defendant.
We find that our further inquiry cannot be limited to the admissibility in evidence of the cartridges and bombs on the contraband theory alone, but must be extended to a much wider field. We do confine our discussion, however, to search and seizure in a dwelling or other premises.
It is well settled that the Fourth and Fifth Amendments to the United States Constitution, part of the Bill of Rights, prohibiting unreasonable searches and seizures and providing that no person shall be compelled in any criminal case to be a witness against himself, are directed exclusively against the activities of the Federal government and have no application to the various states and their agencies.
However, most state constitutions, including that of Ohio (Article I, Sections 10 and 14), contain identical or similar provisions, and the decisions are in general agreement that searches and seizures are unreasonable and illegal in the absence of a valid warrant. Therefore, a law officer who proceeds to make a search and seizure without a warrant, or under a defective warrant, is a trespasser, amenable to civil and perhaps criminal action. But whether articles or property so illegally obtained may be used in evidence against an accused raises another question.
On this proposition the authorities are at hopeless odds, and few matters have been argued pro and con with more earnestness. The United States courts and a number of state courts take the position that since such articles or property were unlawfully secured, they should not be received in evidence, because their admission is tantamount to compelling an accused to be a witness against himself, and their exclusion presents the most practical method of enforcing the guarantee against unreasonable searches and seizures.
But, in some of these cases a formal application before trial has been made a prerequisite to the exclusion of illegally obtained evidence; in others, an application during the trial has been held sufficient, and in still others such evidence has been excluded upon oral objection when offered.
On the other hand, a majority of the state courts have assumed a different attitude, and hold such evidence admissible on the basis that if it is pertinent to the main issue in the case, a court need not concern itself with the collateral issue of how it was gotten, and further, that the people of the state ought not to be penalized by the suppression of evidence tending to prove an offense against the peace and dignity of the state to shield a criminal from deserved punishment, when the Constitution by its plain language makes no such demand.
These diverse positions have been interestingly and ably discussed in the cases, by text book writers, and by contributors to legal periodicals. For those who may care to pursue the subject, reference is made to the following sources:
People v. Defore (1926), 242 N.Y. 13, 150 N.E. 585 ( Certioari denied, 270 U.S. 657, 46 S. Ct., 353, 70 L.Ed., 784); State v. Rowley (1923), 197 Ia., 977, 195 N.E. 881; Meisinger v. State (1928), 155 Md. 195, 141 A. 536; 142 A. 190, dissenting opinion; State v. Owens (1924), 302 Mo., 348, 259 S.W. 100, 32 A. L. R., 383; Commonwealth v. Wilkins (1923), 243 Mass. 356, 138 N.E. 11; 4 Wigmore on Evidence (2 Ed.), Section 2183, page 626 et seq.; Cornelius on Search and Seizure (2 Ed.), Section 7 (7), page 36 et seq.; Underhill's Criminal Evidence (4 Ed.), Section 796, page 1447 et seq.; 1 Wharton's Criminal Evidence (11 Ed.), Section 373, page 590; 136 Am. St. Rep., 135 et seq.; 24 A. L. R., 1408 et seq.; 32 A. L. R., 408 et seq.; 41 A. L. R., 1145 et seq.; 52 A. L. R., 477 et seq.; 88 A. L. R., 348 et seq.; 19 Illinois Law Review, 303 et seq.; 23 Michigan Law Review, 748 et seq.
While the decisions of the United States Supreme Court do not control this court on the issue of immediate concern, they are entitled to respectful consideration. Boyd v. United States, 116 U.S. 616, 6 S.Ct., 524, 29 L. Ed., 746, was decided in 1886. In the trial court, over objection, the defendants had been ordered to produce certain invoices connected with the shipment of goods, under penalty of being bound by the statement of their contents by the prosecution, in accordance with an act of Congress to that effect. The Supreme Court declared defendants' objection valid and the act unconstitutional, on the ground that under the Fourth Amendment the compulsory production of invoices to furnish evidence for forfeiture of goods constituted an unreasonable search, even where made upon a search warrant, and was also a violation of the Fifth Amendment, in that it compelled the defendant in a criminal case to produce evidence against himself, or be in the attitude of confessing his guilt.
In 1904 the case of Adams v. New York, 192 U.S. 585, 24 S.Ct., 372, 48 L.Ed., 575, came to the Supreme Court from the New York Court of Appeals by writ of error. That case appertained to the seizure of certain private papers having a bearing on gambling operations conducted by the defendant under a warrant in which they were not mentioned. Their admissibility in evidence was sustained on the reasoning and authority of cases holding that a court should not turn aside from the principal issue to decide the collateral issue of how the evidence was procured.
Mr. Justice Day said in the opinion, "The security intended to be guaranteed by the 4th Amendment against wrongful search and seizure is designed to prevent violations of private security in person and property and unlawful invasion of the sanctity of the home of the citizen by officers of the law * * * and to give remedy against such usurpations when attempted. But the English, and nearly all of the American, cases have declined to extend this doctrine to the extent of excluding testimony which has been obtained by such means, if it is otherwise competent." Continuing, Mr. Justice Day said of the 4th and 5th Amendments, "We think they were * * * designed to protect against compulsory testimony from a defendant against himself in a criminal trial, and to punish wrongful invasion of the home of the citizen or the unwarranted seizure of his papers and property."
Next came Weeks v. United States, 232 U.S. 383, 34 S.Ct., 341, 58 L.Ed., 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177, in 1914, wherein letters and private documents were seized in defendant's home by a United States marshal without a warrant. Application was made before trial for their suppression as evidence and for their return. In holding that such application should have been granted, the Supreme Court abandoned the doctrine approved in the Adams case and adopted the exclusion principle to which it has adhered in all succeeding cases.
In the Weeks case it was sought to distinguish the Adams case on the grounds that the evidence there held admissible was seized as an incident to the execution of a valid warrant, and that no preliminary application had been made for its suppression and return.
Now, the Supreme Court apparently regards the preliminary application before trial stressed in the Weeks case as merely a procedural matter of no real consequence, for in later cases it has held that evidence illegally obtained should be excluded on application made after commencement of the trial, and even upon objection when offered. Amos v. United States (1921), supra; Gouled v. United States (1921), 255 U.S. 298, 41 S.Ct., 261, 65 L.Ed., 647.
Furthermore, the rule presently adopted by the Supreme Court that "the 5th Amendment protects every person from incrimination by the use of evidence obtained through search and seizure made in violation of his rights under the 4th Amendment" ( Agnello v. United States, post), applies only when such evidence has been thus wrongfully secured by agents of the Federal government acting as such. In other words, if evidence is improperly seized by state officers, or others, operating independently upon their own account, the Federal government may properly use it against an accused. Burdeau v. McDowell (1921), 256 U.S. 465, 41 S.Ct., 574, 65 L.Ed., 1048, 13 A. L. R., 1159; Byars v. United States, post ( 273 U.S. 28, 33, 47 S.Ct., 248, 71 L.Ed., 520, 524).
It may also be remarked that in adhering to the tenet that evidence illegally obtained should be excluded, the Supreme Court undertakes no distinction in the later cases between papers, documents and other property which one may lawfully have in his possession, and contraband property unlawfully possessed. For example, see Agnello v. United States (1925), 269 U.S. 20, 46 S.Ct., 4, 70 L.Ed., 145, 5l A. L. R., 409 (cocaine in violation of the Anti-narcotic Act); Byars v. United States (1926), 273 U.S. 28, 47 S.Ct., 248, 71 L.Ed., 520 (counterfeit strip stamps in imitation of government stamps used on whiskey bottled in bond); Taylor v. United States (1931), 286 U.S. 1, 52 S.Ct., 466, 76 L.Ed., 951 (whiskey in violation of the National Prohibition Act); and compare Poulos v. United States (1925), 8 F.2d (C.C.A., 6), 120 (cocaine in violation of the Anti-narcotic Act).
And now we come to the decisions of the Supreme Court of Ohio relating to the admissibility in evidence of articles or property secured without a valid search warrant. Ciano v. State (1922), 105 Ohio St. 229, 137 N.E. 11, was decided under the Crabbe Act, referred to earlier in this opinion, and it was there held, in the first paragraph of the syllabus, that "Upon the trial of a criminal prosecution, a general objection to the introduction of evidence obtained by search and seizure raises no question other than that of the competency, relevancy and materiality of the evidence tendered, and the court is not required to then examine the collateral question of the regularity of the proceeding whereby such evidence came into the possession of the prosecution."
Rosanski v. State (1922), 106 Ohio St. 442, 140 N.E. 370, and State v. Sabo (1923), 108 Ohio St. 200, 140 N.E. 499, were also decided under the Crabbe Act. The decisions in those cases as to the matter being discussed rested principally on Section 6212-16, General Code (108 Ohio Laws, Part 2, 1183), and particularly on that part providing "It shall be unlawful to have or possess any liquor, or property designed for the manufacture of liquor, intended for use in violation of law or which has been so used, and no property rights shall exist in any such liquor or property."
From this premise the argument seems to be that a search and seizure made upon an invalid warrant or without any warrant is not unreasonable under the Constitution if the result is the procurement of contraband property, the possession of which constitutes an offense. Hence, such contraband is unquestionably admissible as evidence. This view accounts, largely, for the fourth and fifth paragraphs of the syllabus in the Rosanki case, reading as follows:
"4. In prosecutions for violations of the prohibition laws of Ohio, where the charge involves unlawful possession of intoxicating liquors, a seizure of any contraband property by an officer, whether the seizure has been made under process unlawfully procured or without any process, will not void the seizure, nor authorize an order by a magistrate for a return of such contraband to the person from whose possession the same was taken, unless the seizure was made in a bona fide private dwelling.
"5. In such case all such contraband so seized is admissible in evidence upon the part of the state, and collateral inquiry for the purpose of determining its competency may not be made into the manner of its seizure."
The second paragraph of the syllabus in State v. Sabo, supra, is of similar effect.
It will be noted that intoxicating liquors seized in a bona fide private dwelling are excepted from the operation of paragraph 4 of the syllabus in the Rosanski case. This is explained by reference to Sections 6212-16 and 6212-27, General Code (109 O. L., 6), which made a bona fide private dwelling occupied exclusively as such entirely immune from search and seizure under the prohibition laws. In these sections, a bona fide private dwelling was defined as one not "used for the unlawful sale of intoxicating liquor" and wherein no liquors "illegally manufactured or obtained" were possessed. Therefore, all intoxicating liquors were not per se unlawful or contraband by the laws of Ohio during the prohibition era, the possession of which constituted an offense.
One of the cases mainly relied upon in the Rosanski case to support the contraband theory approved in both the Rosanski and Sabo cases is United States v. Snyder (1922), (D.C.), 278 F., 650, which was reversed in Snyder v. United States (1922), (C.C.A., 4), 285 F., 1.
The Supreme Court of the United States has definitely rejected the contraband theory as will be seen from a perusal of the several cases cited in a group above. This fact is made particularly plain in Byars v. United States, supra, where it was held that a search conducted under an invalid warrant was in violation of the federal Constitution, and was not validated by what it produced. And the contraband theory has been adversely criticised in 1 Wharton's Criminal Evidence (11th Ed.), Sec. 373, page 595; 23 Michigan Law Review, pages 759-761.
An authority specially commended in the Rosanski case is People v. Mayen (1922), 188 Cal. 237, 205 P. 435, 24 A. L. R., 1383, a frequently cited case, holding that where any competent evidence is produced on a trial the court will not stop to inquire or investigate the source from whence it comes or the means by which it was obtained, even though a motion for an order requiring its return is made before trial.
After discussing Weeks v. United States, supra, and other like cases decided by the United States Supreme Court up to that time, the California Supreme Court said in the Mayen case: "With the utmost deference to the high authority from which this doctrine comes, we do not feel justified in accepting it as a rule of evidence under the law of California and in the application of our state Constitution thereto."
It may be said in passing that the Constitution of the state of California and that of the United States contain the same provisions as to searches and seizures and self-incrimination.
In 1932 this court had occasion to decide the case of Nicholas v. City of Cleveland, 125 Ohio St. 474, 182 N.E. 26, where the defendant was charged in the Municipal Court of Cleveland with the unlawful possession of intoxicating liquor in violation of a city ordinance. He was convicted and sentenced, and such action was affirmed by the Court of Appeals. It appeared that before trial, which was also true in the Rosanski case, defendant's counsel made a motion to suppress the evidence seized in defendant's home, because it had been procured under an illegal warrant, which was overruled. Reversing the Court of Appeals, and remanding the case, this court held that the warrant was illegal and the evidence should have been suppressed in response to the motion. Apparently accepting the doctrine of Weeks v. United States, supra, the following rule of law is stated in the fifth paragraph of the syllabus of the Nicholas case:
"If before trial, a motion is made by the accused to suppress the evidence obtained under such illegal affidavit and warrant, such motion should be sustained by the trial court, and the evidence, so illegally obtained, should be suppressed and not used for the incrimination of the accused."
Because of the uncertainty existing in our own decisions (which eliminates the problem of stare decisis), and because of conflicting decisions in the lower courts of this state, it would seem both wise and necessary to lay down a definite rule unqualifiedly aligning ourselves with either the "admissionists" or "exclusionists."
Assuming that responsibility, we have reached the conclusion that evidence illegally obtained should not be barred, and the reasons therefor are well and succinctly stated by Dean Albert J. Harno, of the College of Law, University of Illinois, in an article appearing in 19 Illinois Law Review, page 303, at pages 311 and 312, wherein he says:
"The constitutional provision makes an unreasonable search and seizure illegal. But there is nothing in its language changing the rule as to, or in any way affecting, the admissibility of evidence. Searches and seizures shall be legal only under certain conditions. If these are not observed the injured party has his action in trespass. When the issue shifts to a criminal prosecution where the last named individual has become the defendant, by what legerdemain does it now become apropos for him to say: 'Mr. Constable trespassed, I have an action against him to be sure, but since he committed this outrageous act, what he saw and procured, though sufficient to convict me of this crime, has become proscribed as evidence, and although I am guilty of the crime charged, you must set me free?'
"The fact is that this raises a collateral issue involving the legality of the search and seizure * * *.
"There is a fundamental distinction between the search and seizure provision of the Constitution and that which declares that no person 'shall be compelled in any criminal case to be a witness against himself.' Obviously the latter affects the admissibility of evidence, and so it was historically intended. But in examining this privilege certain well defined limitations must be observed. As judicially interpreted the self incrimination clause protects an accused only to the extent that he cannot be compelled by process directed against him as a witness to furnish evidence against himself. No process can compel him to incriminate himself either by coercing him into making oral statements or through compelling him to produce papers or chattels capable of being made the subject of evidence. The individual is immune from testimonial compulsion. Further than that this clause does not extend."
Professor Wigmore in his work on Evidence (2 Ed.), Vol. 4, at page 637, speaks rather caustically of the cases which exclude evidence illegally obtained, employing the following language:
"All this is misguided sentimentality. For the sake of indirectly and contingently protecting the Fourth Amendment, this view appears indifferent to the direct and immediate result, viz., of making Justice inefficient, and of coddling the criminal classes of the population. It puts Supreme Courts in the position of assisting to undermine the foundations of the very institutions they are set there to protect. It regards the over-zealous officer of the law as a greater danger to the community than the unpunished murderer or embezzler or panderer." And to bring the list more up to date we might add the terms gangster, gunman, racketeer and kidnaper.
Of course, if the state of Ohio should ever deem it expedient as a matter of public policy to declare that evidence wrongfully seized can not be used against a defendant in a criminal case on the basis that its admission encourages the lawless acts of over-zealous officers of the law in their methods of obtaining evidence, that would be an entirely different matter which is not our concern here. People v. Mayen, supra.
Was the indictment as returned in the instant case insufficient to charge an offense under the statute, by failure to allege that the cartridges and bombs "were charged or filled with one or more explosives?" We think not. The indictment set forth that such articles were unlawfully in defendant's possession and intended for an unlawful use. Besides, the terms "cartridge" and "bomb" have accepted and well defined meanings. Mentioned together they immediately suggest explosive objects. Webster's New International Dictionary (2 Ed.), (G. C. Merriam Co.), defines cartridge as "A case, capsule, shell or bag, of metal, pasteboard, or other material, holding a complete charge for a firearm." And in the same work bomb is defined as "A projectile containing a high explosive charge." Similarly, the New Standard Dictionary (Funk Wagnalls) defines cartridge as "A charge for a firearm, or for blasting, in a case or shell of metal, paper, pasteboard, or cloth," and bomb as "A hollow projectile of iron, generally spherical, containing an explosive material which is fired by concussion, or by a time-fuse."
If there had been no proof in this case that the cartridges and bombs contained explosives as defined in Section 5903-1, General Code, Wechsler v. State, 124 Ohio St. 461, 179 N.E. 356, might be invoked; but that is not the complaint. The sufficiency of the indictment only is challenged.
The primary function of an indictment is to inform a defendant of the offense with which he is charged, so that he may prepare for his trial. 21 Ohio Jurisprudence, 680, 710. In our view the present indictment fulfilled that purpose, and the defendant was in no wise misled or prejudiced.
If defendant was dissatisfied with the form or substance of the indictment, the statutes are replete with remedial measures he might have used to correct such fault. Sections 13437-6, 13439-5, 13439-6, 13439-7, 13439-9, 13439-11, General Code. And see State v. Whitmore, 126 Ohio St. 381, 185 N.E. 547.
Under the liberal provisions of Section 13437-29, General Code, the trial court did not exceed its powers in allowing an amendment of the indictment.
The judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed.
WEYGANDT, C.J., STEPHENSON and WILLIAMS, JJ., concur.
JONES, MATTHIAS and DAY, JJ., concur in the judgment.
In connection with two of my associates I am concurring only in the judgment. Since this record discloses that the premises searched was used otherwise than as a private dwelling, I concur in the judgment of reversal on authority of Ciano v. State, 105 Ohio St. 229, 137 N.E. 11. I would concur for another reason, to which I shall later allude.
Upon the substantive law of the case, the majority opinion states that, "Because of the uncertainty existing in our own decisions * * * it would seem both wise and necessary to lay down a definite rule," etc. There is no uncertainty in our own decisions. Never has our court indicated that a search of a bona fide dwelling could be made without a search warrant. And if there were any uncertainty, the rule has been definitely established by our court in Nicholas v. City of Cleveland, 125 Ohio St. 474, 182 N.E. 26, which held that a search of a private dwelling cannot be made without a statutory warrant issued in compliance with Section 13430-3, General Code. That case was concurred in by every judge who participated. Later, in Browning v. City of Cleveland, 126 Ohio St. 285, 185 N.E. 55, the Nicholas case was definitely approved and concurred in by every participating judge.
On the constitutional question involved, the Supreme Court of the United States has consistently held adversely to the rule announced in the syllabus. This the majority opinion concedes. It also concedes that the language of the federal Constitution pertaining to search and seizure is almost exactly similar to that employed in our own. Many courts have alluded to the fact that the federal provisions relating to search and seizure are the parent of the state constitutions, whose provisions were taken from the federal. It has always been a rule of statutory construction that, when a state adopts the language employed in a federal statute, the construction given by the United States Supreme Court will be regarded as persuasive, if not controlling, upon the state court. In my opinion in the Nicholas case, supra, I referred to this rule of construction. Only recently the Supreme Court of Ohio announced the same rule of construction in McNary v. State, 128 Ohio St. 497, 191 N.E. 733; and it was more recently followed in State v. Huffman, ante, 27. The rule applying to the construction of statutes also applies to the construction of constitutional provisions as well.
Many offenses are penalized by state as well as by federal law, both penalizing the same criminal act. Under the rule of construction adopted by the majority, if the offender should have the misfortune of being tried in a state court for the same identical offense, the evidence would be admissible; but should he be fortunate enough to be tried in a federal court, the evidence would be inadmissible. This court should not acquiesce in a procedure so anomalous. This diversity of criminal procedure does not appeal to my idea of a consistent system under our American jurisprudence. This feature should furnish an abundant reason why the ruling of this court should harmonize with that of the high federal court and, speaking for myself, it furnishes a cogent reason why we should follow the legal views pronounced by the nine judges of the United States Supreme Court rather than those of the dean of a law school in a western college.
Article I, Section 14, of the Ohio Constitution reads: "The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the person and things to be seized." What becomes of that covenant with the people that "The right of the people to be secure in their * * * houses * * * shall not be violated"? Under this decision, this constitutional provision will have no virtue; it will have been deprived of virility; in short, it would be nullified by judicial decree. And so also Section 13430-3, General Code, which minutely prescribes what the search warrant must contain, will have no legislative efficacy. This cannot well be denied.
There can be no doubt where the federal courts stand upon this question. The case of Weeks v. United States, 232 U.S. 383, 58 L.Ed., 652, 34 S.Ct., 341, L.R.A. 1915B, 834, Mr. Justice Day, writing the opinion, said that the effect of the federal amendment was "to forever secure the people, their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law. This protection reaches all alike * * * and the duty of giving to it force and effect is obligatory upon all entrusted under our Federal system with the enforcement of the laws." He further said that certain unwarranted practices destructive of the rights of the people "should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights."
Seventeen years later, in Go-Bart Importing Co. v. United States, 282 U.S. 344, 75 L.Ed., 374, Mr. Justice Butler commented on the federal provision which declares, "and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." This is in the exact language of the provision in our own Constitution. In speaking of this clause, Justice Butler said:
"This prevents the issue of warrants on loose, vague or doubtful bases of fact. It emphasizes the purpose to protect against all general searches. Since before the creation of our government, such searches have been deemed obnoxious to fundamental principles of liberty. They are denounced in the constistutions or statutes of every state in the Union. Agnello v. United States, 269 U.S. 20, 33 [ 70 L.Ed., 145, 51 A. L. R., 409, 46 S.Ct., 4]. The need of protection against them is attested alike by history and present conditions. The Amendment is to be liberally construed and all owe the duty of vigilance for its effective enforcement lest there shall be impairment of the rights for the protection of which it was adopted. Boyd v. United States, 116 U.S. 616, 623 [ 29 L.Ed., 746, 6 S.Ct., 524]; Weeks v. United States, 232 U.S. 383."
The pronouncements made in propositions four and five of the syllabus, to the effect that the court need not concern itself with the collateral issue of how the evidence is procured and that such evidence was admissible under an unlawful search, are denounced by the federal and many state courts. Were the law to be applied to cases where search warrants are obtained before search, then I could agree that a court need "not concern itself with the collateral issue of how the evidence was procured." This is readily understandable; but to apply the principle to cases where no search warrant has been issued is an indirect method of validating unlawful searches and seizures which the Constitution prohibits.
The high federal court severely condemned such a procedure in Byars v. United States, 273 U.S. 28, 71 L. Ed., 520, saying: "A search prosecuted in violation of the Constitution is not made lawful by what it brings to light; and the doctrine has never been recognized by this court, nor can it be tolerated under our constitutional system," etc.
Some authorities cite the case of Adams v. State of New York, 192 U.S. 585, 48 L.Ed., 575, as supporting the right of the admissibility of evidence unlawfully obtained. Those authorities misconceive the real reason why the United States Supreme Court affirmed the state court. This reason is found in the opinion of the same justice who wrote the Adams case and who distinguished it in the later case of Weeks v. United States, supra, where Mr. Justice Day said: "The decision in that case [Adams case] rests upon incidental seizure made in the execution of a legal warrant, and in the application of the doctrine that a collateral issue will not be raised to ascertain the source from which testimony, competent in a criminal case, comes." (Italics ours.) This statement of the legal principle involved is understandable; that is, where competent evidence has been secured under a legal search warrant, the court will not turn aside and hear the collateral issue relating to the source from which such competent testimony came.
There are millions of homes in our state occupied by law-abiding citizens. They have a right to the protection guaranteed them by our Constitution and state laws. They should not be deprived of their constitutional protection simply because a few, commonly called public enemies of society, bent on the destruction of life and property, demand the same constitutional immunity as a law-abiding citizen. In my judgment, there is a way out, a judicial common-sense method of meeting the legal problems presented in the instant case. I would not place the innocent householder or one suspected of a minor offense upon the same plane as he who plans major crimes such as commercial kidnapping, the destruction of life or property, or who engages in treason against the state and federal governments. I would concur in an interpretation of our state Constitution denying its protection to such a criminal element of society under the first article of our Bill of Rights, which endows our people with the inalienable right of protecting their property and "enjoying and defending life and liberty." He who is engaged in plotting the destruction of property by means of bombs, which may culminate in the probable destruction of life as well, should not be permitted to claim constitutional immunity, and this court should so declare. Construing both of these constitutional provisions together — the one contained in our Bill of Rights, the other in the Search and Seizure Article — I would apply the following rule of construction to the instant case: "It is a fundamental canon of construction that a constitution should receive a liberal interpretation, especially with respect to those provisions which are designed to safeguard the liberty and security of the citizen." 6 Ruling Case Law, 49.
This defendant was suspected of manufacturing bombs and of being engaged in the night-time bombing of the homes of employees of a manufacturing company. If the search produced evidence of his projected crime, the evidence should have been admitted; for neither Constitution nor state law was intended to provide security for such dangerous enemies to our public peace. In such case, and especially where the perpetration of the crime was imminent, a law officer, waiting too long, might face the eventuality of a crime accomplished.
It is not for the class of criminal element alluded to, but for the class embodying millions of citizens who are innocent of any offense or whose offenses are minor, that I urge protection under the search and seizure clause of the state Constitution. The decision of this court in the instant case is too broad, since it is made to apply to everyone suspected of committing any offense whatever. There is one advantage the occupant of a bona fide dwelling now has and always has had — he could discover whether a search warrant had in fact been issued and, for his own protection, could demand its production. Under this decision, should someone appear in day-time or night-time and demand the search of a housewife's dwelling, whether the demandant be an officer or a criminal impersonating an officer, as is frequently done, the housewife would be helpless. She would be met with a truthful statement that the Supreme Court of Ohio had held that no search warrant was necessary, and that her only remedy was a suit for trespass. A civil suit might furnish the housewife some relief against an officer if he be under bond; but if the search and seizure be made by a thief or robber impersonating an officer, the amount of damages recovered would probably be nil. If her goods were recovered and she were religious, she could thank God for their recovery. This might furnish some consolation for her distress. I fear that this decision will yield a fertile field of operations to the criminal element, should it learn that a dwelling may be searched without a warrant.