The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1922-12-09
ILLEGALITYBY
OFFICERS NO
EVIDENCE BAR
Evidence Obtained of Liquor
Violation Without Seach
Warrant Is Upheld
LOCAL MEN CONVICTED
Supreme Court Divided in
Opinion Held Important in
Dry Law Enforcement
LOCAL MEN CONVICTED


eating liquor, seized by officers who
entered a dwelling house without
search warrant and as unlimited
guests, was upheld by the supreme
court here today in an opinion re-
garded as of considerable Importance
=. in the enforcement of liquor laws
in the state.
In the same case the court held
In the same case the court held that
the legislative act foridding the man.
ufacture Of liquor for whatever pur-
pose was valid, and that it did not
contravenc the institutional pro-
vision which forbids manufacture Of
liquor for sale, gift or barter.
The court was divided, Judge Bron-
son, who wrote the majority opinion,
Chief Justice Birdzell and Judge
Christianson taking similar views.
Judge Grace held the anti-liquor act
wa,: constitutional but that the acts
of the officers was in violation Of the
constitution. Judge Robinson held
that it is unconstitutional for the
legislature to forbid the manufacture
Of liquor not sold, bartered or given
away and also that the officers vio-
lated the constitution.
The case arose in. Burleigh county,
the defendants being J. w. Pauley
and his son, Pearlie Pauley. 1t has
been declared by defendants that the
case would be taken to the United
State supreme court
The circumstances were that in
February, 1922, the sheriff, chief Of
police and deputy sheriff visited
the home of the defendants in Bis
marck. They possessed neither war
rant of, arrest nor search warrant
At the door they told the wife Of one
of the defendants that they desired
to sec her husband. She stated she
would call him; officers, said they
would go see him. They proceeded
to the basement and there they
found the defendants manufacturing
Intoxicating liquor, the court record
states. They seized the equipment
arrested the defendants, and at the
trial the defendants objected to the
production of the equipment used in
making liquor and it's introduction
in evidence.
Duty to Arrest.
Judge Bronson in his opinio'
states the officers were not invited
guests but were not denied admit
tance to defendants, saw the defend
ants committing crime and it was
their duty to arrest them, and that
received in evidence.
Quoting from authorities he saio l..
"It has long been established that
the admissabilty of evidence is not
affected by the illegality of the
means through which the party has
been enabled to obtain the fyidence'
The illegality is by no means con-
doned; it is merely ignored"
He declared that such illegality
must be redressed, or punished OF
resisted by appropriate proceedings
otherwise taken, and that it would
not invalidate the conviction in this
case. Whether the seizure was un-
reasonable, he asserted, was not at
issue. *
Regarding the action Of officers
he further said: Their right to in
terrupt the performance of a crime
and to apprehend the offenders and
to seizure the instrumentalities be-
ing used to commit the crime is not
to be denied because the defendants
happened to be operating within the
confines of their own home"
Constitution Not Violated.
The proof of such instrumental
tiles for the manufacture of liqure
and their reception in evidence was
not violative of the constitutional
provision that no party in any Grim.
inal case shall be compelled to be
witness against himself, Judge
Bronson declared.
Judge Grace, in his opinion, point.
ed out that the state law prohibits
the manufacture Of intoXicatin
liquors, irrespective of whether the
same is manufactured for sale OF
gift, while the Constitution makes
the manufacture of liquor violation
of law only if for sale, barter OF
gift He held that the legislature
had power to prevent the manufac-
tuer for any purpose.
The action of the officers in enter.
ing the home without search war
rant and in the manner they did, he
held, was violation of the provis ion
on the Constitution protecting the
home against unreasonable search es
and seizures
He said that: "Under the evidence
and in the circumstances of this
case, the entry by the officers and
each of them upon the premises and
into the home of the defendants
without a warrant for their arrest
or for the arrest of either of them
without a search warrant, with nc
order or comand from any court and
with no authority whatever under
our laws and Constitution, for the
sole purpose of searching for and
seizing Intoxicating liquors and to
discover if the same were manufac-
tured in the home, was a wanton
tre5pass and direct and fragrant
invasion of the constitutional rights
of the defendants (who were occupy
ing the premises as home) guaran-
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