of the board. stock of the Crowell & Thurlow Steamship the parties concerned in the negotiations, both Company on the defendants' terms, and one principals and brokers, were fully aware of who in fact did execute with the defendants this law, and none of them contemplated sellon that day a contract of purchase and sale. ing either the vessels or a majority of the The contract between the assignor and the stock of the corporation without the assent defendants relative to the commission of the discussion, and efforts which were made from It was a matter of frequent assignor is contained in two letters, which time to time to obtain the board's consent read as follows: proved fruitless, and ultimately failed, so far "In accordance with conversation with your as appeared, through no one's fault. None Mr. Levenson, Jr., to-day, it is now understood of the parties interested, the brokers, the deby us and agreed to by you for Messrs. Pack-fendants, or the prospective purchasers, conard & Co., of No. 1 Wail St., New York, that templated that any rights would be fixed or in the event of a sale of the stock of the Crow-that liability on the part of anyone would atell & Thurlow S. S. Co., through the Kirby tach unless such assent were procured, and Coal-Iron-Marine Company, Messrs. Packard unless certain other conditions were fulfilled & Co. are to receive 22% commission on all nor did anyone consider that there of the stock transferred at $1,400.00 per share. was any practical distinction between selling By our agreement with you to-day, as stated a majority of the stock and selling above, our letter to Messrs. Packard & Co. of the vessels themselves." Dec. 18, 1917, is superseded and made void. Kindly confirm this understanding by letter to us, as well as a letter of confirmation from Messrs. Packard & Co. Yours truly, [Signed] Crowell & Thurlow, as Agts.' Having in mind the necessity of obtaining the assent of the Shipping Board before the vessels of the Crowell & Thurlow Steamship Company could be sold to a person not à citizen of the United States, or transferred to a foreign flag or registry, the defendants and the representative of the Banca Italiana Di Sconto conferred in New York City, with the result that on January 3, 1918, the defendants in a letter addressed to the representative of the Banca Italiana made a proposal or offer to sell to the representative such→→→→ "Replying to your favor of December 22, 1917, addressed to Messrs. Levenson Bros., of 50 Church street, New York City, in which you state that we are to receive 22% commission on all of the stock of the Crowell & Thurlow Steamship Co. which is transferred at a price of $1,400.00 per share. We accept this proposition and in consideration thereof we are returning you herewith your letter to us, dated December 18, 1917, referring to said commission which last named letter is ren-"shares of the capital stock of the Crowell & dered void by this present agreement. Yours very truly, [Signed] Packard & Co. "N. B.-Levenson Bros. hereby confirm and assent to the above arrangements. [Signed] Levenson Bros." It appeared in evidence that the only asset of the steamship company consisted of eight steamships; that the person procured as a purchaser of the stock purported to act as the representative and in behalf of the Banca Italiana Di Sconto, a corporation with residence in Rome, Italy; and that the object to be attained by the purchase of the stock was the legal control and ownership of the steamships. The trial judge found and it is clearly supported by all the testimony that: "The transaction in question involved the sale of a fleet of steamships to citizens of a foreign government, and the transfer of these vessels to a foreign registry and flag. The United States was at war, and by section 9 of the Act of Congress creating the United States Shipping Board, adopted September 7, 1916 (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919 § 8146e), no vessel registered or enrolled and licensed under the laws of the United States could be sold, leased or chartered to any person not a citizen of the United States, or transferred to a foreign registry or flag without the approval of the Shipping Board. The vessels of the Crowell & Thurlow Steamship Company were duly registered under the laws of the United States and consequently could not be transferred to a foreign flag without such approval. All of Thurlow Steamship Company as may be deposited for transfer, such shares to constitute at least 80 per cent. of the entire capital stock of the corporation, for the sum of $1,400 per share.". As regards the execution of the offer and acceptance, the representative, prospective purchaser, testified as follows: "Q. And Mr. Warner and Mr. Jones came in on the 3d of January to your office? A. Yes; to my office. I told them I could not accept definitely this offer unless I got the permission of the Shipping Board, and I said I would like to see Mr. Hurley. "The Court: Who was Mr. Hurley? "Mr. Burnham (of counsel for defense): Mr. Hurley, was president of the Shipping Board." "Q. You wanted to buy the ships? A. Yes; certainly. "Q. Mr. Jones would only sell the stock of the corporation? A. Yes. "Q. And you wanted to go to Washington to see whether the- A. To get first the permission from the Shipping Board." Mass.) COMMONWEALTH v. WILKINS. Mr. Jones, who represented the defendants, [according to its terms. testified as regards the above interview: "Q. You referred to the conditions of making a deposit of the money on the 12th, didn't you? A. No; the agreement of the Shipping Board. ་ "Q. Why didn't you put that in your little paper? A. Because Mr. Bragadin [the representative] was very clear and precise, stating that condition himself, as a condition for his putting his name upon that, and for his taking it to Washington-that it should not go into effect, or have any effect, unless he obtained permission from Washington. That was understood expressly between him and me, and there was no misunderstanding about it." ¥ [1] Upon this testimony the sitting judge found that: "The agreement of January 3, 1918, was signed and delivered by the defendants and by Bragadin on the understanding and condition that it was to be wholly ineffective as an offer, or as an agreement or in any other respect, unless the Shipping Board approved the The condition transfer of the stock. e board was not peras to the approval by the formed; its assent was never given, and therefore the instrument became wholly ineffective." We think the evidence fully supports the finding that it was agreed between the parties at the time the instrument of offer and acceptance was signed that it should not have effect until Mr. Bragadin got the de sired permission from the Shipping Board. [2] Assuming the evidence warranted a finding that the parties to the instrument agreed before its manual transfer, in form a complete contract, that it should not become binding until happening of some condition precedent resting in parol, the plaintiff contends that the declared intention of the parties to make the delivery conditional should not be admitted in evidence, because' to do so would violate the rule of substantive law that evidence of acts and intention before the execution of a written instrument was not admissible to contradict, very or modify a present and completed contract. He rests the contention upon the statement of Mr. Justice Loring in Elastic Tip Co. v. Graham, 185 Mass. 597, at page 600, 71 N. E. 117, at page 118: . "It is settled that a completed instrument may be shown by parol to have been delivered on a condition which has not been performed." Elastic Tip Co. v. Graham, supra, and cases cited. The finding against the claim of the plaintiff in this regard makes unnecessary a consideration of the other exceptions. Exceptions overruled. COMMONWEALTH v. WILKINS. (Supreme Judicial Court of Massachusetts. 1. Courts 97 (6)-Construction of federal Decisions of the United States Supreme Court as to the admissibility of evidence under Const. U. S. Amend. 4, relative to searchest and seizures, are not binding on the Supreme Judicial Court of Massachusetts in interpreting similar provisions of the Massachusetts, Con. stitution. 2. Courts 97(6)-Interpretation of state Constitution vested finally in state Supreme Court. The interpretation of the state Constitu-, tion is vested finally in the Supreme Judicial Court, except, perhaps, so far as it affects rights secured under the federal Constitution and laws. 7-Provision of 3. Searches and seizures Const. U. S. Amend. 4, relative to searches and seizures does not apply to proceedings in the state courts. Whether physical 4. Criminal law 395 evidence obtained lawfully or unlawfully not inquired into. The courts will not pause in the trial of cases to investigate whether physical evidence, such as intoxicating liquors kept, carried, or sold contrary to law, was obtained by the prosecution lawfully, or unlawfully; the only matter considered being whether the evidence is pertinent to the issue. Police officer alone, and 5. States 112 not government, responsible for his illegal seizure of tangible evidence. An ordinary police officer is not the agent of the government, when acting outside the scope of his authority in seizing tangible evidence of crime, and if he commits a crime or civil wrong, he alone, and not the government, 6. Intoxicating liquors 255-Courts will not adjust rights between one seizing liquors unlawfully and one not asserting lawfulness of his own purpose and right. And he argues therefrom that the term "completed instrument" was used advisedly is responsible. and that evidence of a conditional agreement before the actual execution of the instrument itself is not admissible. We think the words "completed instrument" in the opinion were used to describe an instrument which in form is complete and would be an executed instrument if it were delivered with an intent that it should take effect and be operative The courts commonly do not concern themselves with the adjusting of property rights between wrongdoers contending as to the possession of that which the law does not recog For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes nize as innocent and innocuous, such as intox-1 person, his houses, his papers and all his posicating liquor illegally seized from one seek- sessions." ing its return, but not asserting the lawfulness of his purpose and right in the seized liquor. 395-Physical evidence illegally seized by officer competent. 7. Criminal law un Physical property, seized through an reasonable search, is admissible in evidence, when presented by the district attorney, who alone represents the government, whether the illegal search and seizure was made by a police officer without a warrant, or by a private individual acting on his own responsibility. Exceptions from Superior Criminal Court, Middlesex County; Frederick Lawton, Judge. Herbert Bray Wilkins was found guilty of keeping and exposing liquor for sale, and he brings exceptions, Exceptions overruled. Defendant's exceptions were to the refusal, before trial, of his petition for the return of property alleged to have been illegally seized, and to the exclusion, at the trial, of evidence offered to show that liquor introduced by the commonwealth was obtained as the result of illegal seizure. It was contended that the warrant was illegal and also that seizure was made in excess of its authority. After discussing these points the decision was rested on a ground which ignored any distinction between these contentions. It there was said at pages 337, 338: terials were illegally seized, still this is no le- gal objection to the admission of them in evi-. That statement of the law has been followed and approved hitherto in this commonEndicott P. Saltonstall, Dist. Atty., of Bos- wealth in a large number of cases involving ton, and Raoul H. Beaudreau, Asst. Dist. At- almost all grades of crime, including murty., of Marlboro, for the Commonwealth. James P. Brennan, of Boston, for defend-out search warrant by police officers has der in the first degree. Property seized with ant. RUGG, C. J. This is a complaint charging the defendant with keeping and exposing for sale intoxicating liquors. The defendant before the trial filed a petition for the return of two bottles of liquor alleged to have been taken from his person by a police officer without right. This petition was denied. At the trial the defendant excepted to the admission in evidence of intoxicating liquors, setting forth that they were obtained by an illegal seizure by a police officer and offering to present evidence thereof and asking that he be heard by the jury at that time on the col been admitted in evidence, even though rights. of the defendant have been violated in securing possession of it. The constitutional aspects of the matter have been treated as settled by Commonwealth v. Dana, ubi supra, and the numerous cases following it: Commonwealth v. Certain Lottery Tickets, 5 Cush. 369, 374; Commonwealth v. Intoxicating Liquors, 4 Allen, 593, 600; Commonwealth v.. Welsh, 110 Mass. 359; Commonwealth v. Taylor, 132 Mass. 261; Commonwealth v. Henderson, 140 Mass. 303, 5 N. E. 832; Commonwealth v. Keenan, 148 Mass. 470, 20 N. E. 101; Commonwealth v. Ryan, 157 Mass.403, 32 N. E. 349; Commonwealth v. Tibbetts, 157: Mass. 519, 32 N. E. 910; Commonwealth v. The question to be decided is whether in- Hurley, 158 Mass 159, 33 N. E. 342; Comtoxicating liquor obtained by an illegal sei-monwealth v. Byrnes, 158 Mass. 172, 33 N. zure by a police officer is admissible in evi- E. 343; Commonwealth v. Brelsford, 161 dence against a defendant charged with crime Mass. 61, 39 N. E. 677; Commonwealth v. in the courts of this commonwealth. lateral issue so raised. 329; Commonwealth v. Smith, 166 Mass. 370, 44 N. E. 503; Commonwealth v. Tucker, 189 Mass. 457, 470, 76 N. E. 127, 7 L. R. A. (N. S.) 1056. In Adams v. New York, 192 U. S. 585, 24 Sup. Ct. 372, 48 L. Ed. 575, it was said in holding admissible in evidence papers seized in excess of the authorization of a Welch, 163 Mass. 372, 40 N. E. 103; ComThe underlying principle on which the de-monwealth v. Acton, 165 Mass. 11, 42 N. E. cision of that question depends came before this court for adjudication in 1841. In Commonwealth v. Dana, 2 Metc. 329, the defendant was indicted under a lottery statute, and a lottery ticket and other materials seized by a police officer were admitted in evidence against the exception of the defendant. The opinion contains a review of the reasons which led to the adoption of article 14 of the Bill of Rights of the Constitution of this commonwealth, to the effect that: warrant: well as reason limits the inquiry to the com"In such cases the weight of authority as petency of the proffered testimony, and the "Every subject has a right to be secure from courts do not stop to inquire as to the means all unreasonable searches, and seizures, of his i by which the evidence was obtained." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexos (138 N.E.) See Holt v. United States, 218 U. S. 245, | cured under the federal Constitution, trea252, 31 Sup. Ct. 2, 54 L. Ed. 1021, 20 Ann. ties, and laws. See Opinion of Justices, 234 Cas. 1138, and Hale v. Henkel, 201 U. S. 43, Mass. 597, and cases collected at page 607, 26 Sup. Ct. 370, 50 L. Ed. 652. 127 N. E. 525, at page 529; McCullough v. Virginia, 172 U. S. 102, 109, 110, 19 Sup. Ct. 134, 43 L. Ed. 382; Long Sault Development Co. v. Call, 242 U. S. 272, 37 Sup. Ct. 79, 61 L. Ed. 294. No federal question is here involved. The Fourth Amendment to the federal Constitution does not apply to proceedings in the state courts. As was said in 1887 by Chief Justice Waite in Spies v. Illinois, 123 U. S. 131, 166, 8 Sup. Ct. 21, 24 (31 L. Ed. 80): "That the first ten Articles of Amendment [to the United States Constitution] were not intended to limit the powers of the state government in respect to their own people, but to operate on the national government alone, was decided more than a half century ago, and that decision has been steadily adhered to since." Doubtless the raising of the question anew in this commonwealth is due to decisions of the Supreme Court of the United States interpreting the Fourth Amendment to the federal Constitution, which in substance is the same as the Fourteenth Article of our Bill of Rights already quoted. The precise point of the federal decisions, as we understand them, is that property of a defendant seized by or under the direction of an officer of the federal government in violation of rights secured by the Fourth Amendment to the Constitution of the United States cannot be used as evidence in a federal court against that defendant on trial for having committed a crime but should be returned to him on motion made before the opening of such trial. Boyd v. United States, 116 U. S. 616, 6 Sup. See Pearson v. Yewdall, 95 U. S. 294, 296, Ct. 524, 29 L. Ed. 746; Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. 24 L. Ed. 436; Holden v. Hardy, 169 U. S. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Sil- 366, 382, 18 Sup. Ct. 383, 42 L. Ed, 780; verthorne Lumber Co. v. United States, 251 U. Twining v. New Jersey, 211 U. S. 78, 98, 29 S. 385, 40 Sup. Ct. 182, 64 L. Ed. 319; Gouled v. Sup. Ct. 14, 53 L. Ed. 97; Minneapolis & United States, 255 U. S. 298, 41 Sup. Ct. 261, St. Louis Railroad v. Bombolis, 241 U. S. 65 L. Ed. 647; Amos v. United States, 255 U. S. 211, 217, 36 Sup. Ct. 595, 60 L. Ed. 961, L. 313, 41 Sup. Ct. 266, 65 L. Ed. 654. Objec-R. A. 1917A, 86, Ann. Cas, 1916E, 505; Comtion to such evidence is not too late, even at monwealth v. Leventhal, 236 Mass. 516, 522, the trial of the defendant for the crime, pro vided it comes promptly upon the first notice which comes to the defendant of such illegal seizure of his property. On the other hand, property of a defendant seized by a police officer in excess of his legal warrant is admissible in evidence provided the question is raised first when the evidence is proffered at the trial. Adams v. New York, 192 U. S. 585, 24 Sup. Ct. 372, 48 L. Ed. 575. And property seized by private individuals without color of authority may be used by a special assistant to the Attorney General of the United States, to whom it has been turned over, as evidence in a criminal prosecution of the owner in the federal courts. Burdeau v. McDowell, 256 U. S. 465, 41 Sup. Ct. 574, 65 L. Ed. 1048, 13 A. L. R. 1159. In the Circuit Court of Appeals for the Fourth Circuit it was held in Kanellos v. United States, 282 Fed. 461, that property seized contrary to law by a state police officer was admissible in evidence on the trial of its owner charged with crime in the United States courts, there be ing no evidence that the seizure was made by arrangement with any federal officer. To the same effect is Youngblood v. United States (C. C. A.) 266 Fed. 795. 128 N. E. 864. Nevertheless the deference due to decisions by the highest court of the nation when differing from our own decisions requires consideration anew of the question [4, 5] It is a generally recognized principle of the law of evidence that courts do not pause in the trial of cases to investigate whether physical evidence, such as intoxicating liquors kept, carried or sold contrary to law, was obtained lawfully or unlawfully. That is regarded as a collateral inquiry. The only matter considered by the court is whether such evidence is pertinent to the issue. Courts do not impose an indirect penalty upon competent evidence because of illegality in obtaining it. An ordinary police officer is not regarded as the agent of government if he acts outside the scope of his authority in seizing tangible evidence of crime. He does not carry with him the support of the government, but incurs personal liability if he fails to keep within the bounds of his duty. Outside those bounds he has no more color of authority than a private individual. Whether he commits a crime or a civil wrong, the offending officer alone is responsible. Bolster v. Lawrence, 225 Mass. 387, 114 N. E. 722, L. R. A. 1917B, 1285 and [1-3] Those decisions are not binding on cases cited. For the misconduct of a private this court in interpreting similar provisions | individual the government is not answerable. of the Constitution of this commonwealth. He may be brought to court to answer for The interpretation of that instrument is vested finally in this court (Fairfield v. County of Gallatin, 100 U. S. 47, 52, 25 L. Ed. 544), except perhaps so far as it affects rights se his wrong either civilly or criminally. But his misconduct ought not to hamper the government in the enforcement of laws and the preservation of order. The wrong committed in seizing the liquor without a warrant was a transaction by itself. It has no necessary connection with its subsequent use as evidence. [6] The motion in the case at bar involved the question whether the liquor was contraband or was lawfully in the possession of the defendant. Courts commonly do not concern themselves with the adjustment of prop erty rights between wrongdoers contending as to possession of that which the law does not recognize as innocent and innocuous. The law leaves the parties where they put themselves. Duane v. Merchants' Legal Stamp Co., 231 Mass, 113, 120 N. E. 370. The defendant by his motion did not assert the lawfulness of his purpose and right in the seized liquor. He asked for its return simply because seized unlawfully. See discussion with ample citation and review of decided cases in other jurisdictions by Professor Wigmore in the American Bar Association Journal for August, 1922, vol. 8, pp. 479, 484. 2. Intoxicating liquors 140 Keeping at house with intent to sell at place of business is offense. If whisky found in defendant's house was kept with intent by him to sell it at his place of business, he was guilty of keeping it with intent to sell it unlawfully. 3. Intoxicating liquors 233(2)-Finding of whisky admissible on trial for keeping for sale. On a trial for exposing and keeping for sale intoxicating liquors with intent to sell them unlawfully, the circumstance that whisky was found in defendant's house was admissible to prove that it was kept by defendant, though not sufficient, without other evidence, to show the required intent. 4. Intoxicating liquors 236 (7) G Evidence held to warrant finding that liquor was kept in home and taken to store for sale. [7] We are unable to assent to the distinctions established by the federal decisions. The presentation of evidence in court in prosecution of crime is by the district attorney, who for that purpose is the representative of the government. He alone decides what evidence shall be offered. It seems to us that whether physical property seized through an unreasonable search should be received in On a trial for keeping intoxicating liquors evidence when presented by the government with intent to sell them unlawfully, evidence attorney, cannot soundly depend upon the held to warrant jury's findings that whisky was antecedent and disconnected fact that the kept in defendant's dwelling house and from unreasonable search by which it was unlaw-there carried a short distance to his saloon fully obtained was made by a police officer or store for the purpose of sale. ficer searching defendant's house had warrant admissible. Evidence that an officer searching defendant's house and finding intoxicating liquor had a search warrant was admissible as tending to show that he acted under lawful authority, especially where he testified that he exhibited it to defendant and his daughter. without any warrant instead of by a private 5. Criminal law 338 (3)—Evidence that ofindividual acting on his own responsibility. The decisions of the United States courts and all other courts appear to be unanimous in holding that in the latter instance property will be admitted in evidence, if otherwise competent, against the owner on trial for a crime. We prefer to adhere to our rule, which makes the competency of evidence depend upon its inherent probative value rather than upon outside circumstances, and which leaves the redress of grievances for invasion of constitutional rights to the usual and ade 6. Criminal law 394-Whether officer had warrant, or whether it was defective, immaterial. quate provisions of the civil and criminal ing defendant's house and finding intoxicating law. nent to the issue, is admissible, though procured in an irregular or illegal manner. Evidence of facts 7. Criminal law 394 transpiring on search admissible, though officer acting unlawfully. It is immaterial whether an officer, searchliquor, had a search warrant or not, or whethWe should hesitate under any circumstanc-er or not it was defective, as evidence perties to overrule so many of our decisions rendered through so long a period of time, but as matter of reason we remain satisfied with the grounds on which they were decided. Hill v. Boston, 122 Mass. 344, 372, 373, 380, 23 Am. Rep. 332; Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159, 196, 89 N. E. 193, 40 L. R. A. (N. S.) 314; Bothwell v. Boston Elevated Railway, 215 Mass. 467, 477, 102 N. E. 665, L. R. A. 1917F, 167, Ann. Cas. 1914D, 275. Exceptions overruled. The testimony of an officer, who searched that before entering he heard the sound of defendant's house and found intoxicating liquor, breaking glass, and on entering the kitchen found broken jugs in a washtub and whisky therein, which he sopped up, and as to what else he did and found, was admissible, even For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |