Evening journal., 1921-03-01

Sessions to make this preliminary
motion before a trial of the case.
Eut upon a thorough examination of
the cases upon this point. have
reached the conclusion that it IS In
no sense a question Of a committing
Jurisdiction; that the
question of the admissibility OF evil
dence is the question involved here;
and that IL 1t be proper TO exclude
this evidence for the reason that IL
was obtained unlawfully, the de-
PENDANTS are entitled to have II ex-
cluded at a preliminary hearing. In
other words. IL the contention made
by counsel for defendants is correct,
they are entitled to have this evil
dence returned to them, and TO have
any proof thus unlawfuliy obtained
excluded upon a trial. II II is not
proper evidence in the Court Of
General Sessions. Il is not proper
evidence before a committing magis-
trate; and II IL is not proper evi-
dence, then there is no probable
cause TO suspect the defendants
guilty Of a crime.
There Is a general principle OF
law that evidence may be admitted
in a criminal case. regardless of how
IL is obtained. There are. Of course.
certain exceptions to this rule which
are not involved in this case. This
is so well settled that the question is
rarely ever raised; the books are
full OF decisions holding TO this
rule. There seems to have been de-
veloped. however, in comparatively
recent years, and particularly in the
Federal Courts. a new procedure to
protect tho defendants against the
violation of those rights which are
given him by the Fourth Amend
ment of the Federal Constitution.
That procedure the defendants are
ondeavoring to follow in this case.
In this new procedure, the courts
hold generally that the rights of the
defendant have been violated, and
II the defendant has suffered a
wrong, the court must fnd a rem
edy.
THE method which has been
adopted is to order the return Of the
evidence to the defendants upon
proper petition to the court. and to
further hold that the State or United
states cannot produce any evidence
this illegally obtained.
THE same courts which grant this
preliminary motion hold to the old
rule mentioned above, that evidence
may be admitted against the de-
fendant, regardless OF how it was
obtained, where no preliminary mo-
tion has been made. they do this
upon the theory that the defendant
makes his objection too late; that
TO hear It at the trial Is TO raise a
collateral issue, which will not be
permitted. AS nearly as I can work
II out, the law upon this subject Is
as follows;
The rule that evidence will be ad-
mitted against the defendant. re-
gardless Of whether Il was obtained
by the state legally or not, is sci,
dom, If ever. questioned by any
court There are a few cases, how.
ever, which hold that IL before the
trial the defendant makes applica.
tion to the court for the return OF
the evidence illegally taken, his mo.
tion will be granted and the Stat,
will be compelled TO give up the evi
dence and will be precluded at tn,
trial from offering In evidence an,
information thus obtained. SO IA
as l can find, there is not a singl,
final decision which does not up
hold this rule. There are severa
cases where the lower courts hav
refused the motion. but in all O
these cases the decisions OF the lowe
courts have been reversed.
"The most OF these decisions ar
Federal decisions. two of them I
the Supreme Court OF the Unite
States. The constitutional provislo
Of our own State with respect to thi
matter is so much like the Fedora
Constitution that It is Impossible {
escape the effect OF these decisions
Judge Hastings then quotes an
analyses at length, the cases O
| Boyd w. the United States an
Weeks Va. United States. both de
I cided by the Supreme Court. a
being the leading cases in construc
tion OF the fourth amendment 70 tn
! Federal Constitution regarding tn
I right OF search and seizure, an
also the case Of the State VS.. Marx
hansen. decided by the Michigan Su
preme Court, a liquor seizure cas-,
In conclusion. Judge Hastings says
81 am clearly OF the opinion tina
the cases above cited fully sustai
the rule contended for by the defen
dants counsel and that they ar
controlling in the present case. tn
application OF this rule TO the pres
Cnt case. however. raises a furthe
question. The articles seized. q
described in the petition filed, ar
one grip containing alcohol
liquor and one demijohn containin
alcoholic liquor Can the cou
order the return OF the liquor. whe
20 do so would be to lend its aid
the commission Of a crime by IN
petitioner, It appearing that n
liouor consists OF more than OF
quart OF spirituous liquors, the DO
session OF which is. by the Loo
Law, declared unlawful? Clearl
on fundamental principles. this ca
not be done.
IAN order viii. therefore. be mat
, for the return to the petitioner
, the grip illegally seized. and the p
, tition for the return OF the alcohol
liquor will be refused. Such refusi
Il need hardly be said. does not
I any way affect the right OF the d
PENDANTS 10 have excluded any G,
, dence OF guilt unlwafully obtained
! 1T appearing that there is not
! ing properly in evidence TO cons
I tute probable cause to suspect &
\ defendants guilty OF a crime. IN
q | will be dismissed"
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