Evening journal., 1922-09-30
CAN USE LIQUOR
FOR EVIDENCE
(Continued From First Page.)

A0O1DnueQ FROM flFSL IdBes)
Rice in the course OF their opinion
said.
'Tn the present case the defend
ant has made a motion, for the re-
turn or destruction OF the liquor
taken without a warrant. so that II
may not be used as evidence against
him at his trial. He does not expect
its return. for possession would be
unlawful. Such motion. therefore
indicates THAI the defendant has no
right TO the liquor. and that he can
not lawfully have It in his possess
sion. What right then has he TO ask
for its destruction? The only answer
is. that the liquor was unlawfully
taken from him, and should be de-
stroyed. This seems TO us 10 be
Illogical, unreasonable. and unfair
to the State in its effort TO punish
the criminal. Upon what theory Of
justice or reason has any one the
right TO have returned 10 him money
he has stolen, a weapon with which
he has committed a murder, or in
toxicating liquor he has in his pos
session in violation of law, no mat
ter by what means It was found and
seized? II the liquor must be de-
stroyed the result is that the person
who made the illegal search is not
punished, but the State is punished
in being deprived OF the use OF the
LIQUOR to secure the wrongdoer's con-
viction. We do not believe the con-
stltution makers ever meant TO be so
solicitous for the interests OF per-
son accused of crime as to exclude
from the jury. not only the evidence
OF his guilt but the thing. the very
possession of which constitutes his
crime. Such an article is, in theory,
and ought 10 be in fact. whenever
and however taken. forfeited by the
accused. and in the custody Of the
law. We are satisfied that no U. S.
Supreme Court case has held the
contrary, and believe that the Boyd
and Weeks cases impliedly endorse
this view.
'In none OF the Supreme Court
cases was the article taken ordered
70 be destroyed. and in all OF them
the articles ordered to be returned
were the property 70 the accused"
1--WE are fully convinced that a
decided majority OF the State courts
sustain the position we have taken.
and after careful examination Of
the Federal cases we believe the u.
s. Supreme Court has not held that
liquor. the possession of
which IS unlawful. as in this State,
and seized without a warrant, must
b.. destroyed or that the use Of such
liquor as evidence against the de-
fendant. would be a violation Of any
provision OF the constitution.
I'VE fully realize the importance
not to say. the sacredness Of those
guarantees designed to-
the person and property
OF the citizen, and particularly his
freedom from unreasonable search
and seizure: but We also appreciate
the rights of the State and the neces-
sity of protecting the law-abiding
citizens against the criminal class.
We believe the constitutional provi-
sions should be. and can be con-
strued as to give the wrongdoer all
the rights and immunities the con-
stitution intended he should have
and at the same time furnish to so
riety the protection It should have
from the enforcement Of the law and
The punishment OF the criminal.
in view OF present conditions. es-
pecially the great difficulty expert
anced in enforcing the criminal
avs, It would be most unfortunate
( the proof of defendants guilt, the I
,asis of the charge against him, the
instrument OF his crime. could not
IN any case be used against him at
his trial IL obtained By arrest or
search without a warrant.
"If such evidence could not be /
ised in the case before the court It
surely could not be used in any /
,ase."