Opinion
05-11-1936
STATE v. EPISCOPO.
Robert H. Richards, Jr., Deputy Atty. Gen., for the State. H. Albert Young, of Wilmington, for defendant.
Anthony Episcopo was indicted for unlawfully keeping, with intent to sell, intoxicating liquors, and he moved for a return of alcoholic liquors alleged to have been illegally seized and for suppressing the introduction of the liquors in evidence.
Petition dismissed.
RICHARDS and SPEAKMAN, JJ., sitting.
Robert H. Richards, Jr., Deputy Atty. Gen., for the State.
H. Albert Young, of Wilmington, for defendant.
Court of General Sessions for New Castle County. Indictment for unlawfully keeping with intent to sell intoxicating liquors, No. 45, March Term, 1936.
Motion for return of alcoholic liquors alleged to have been illegally seized and for suppressing the introduction of the same in evidence at the trial.
Before pleading to the indictment the defendant presented a petition alleging in part that he is a resident of the city of Wilmington, County of New Castle and State of Delaware; that on or about the 8th day of February, A. D. 1936, certain police officers of the city of Wilmington did enter his residence in violation of the law of this state and did search the same and did seize certain alleged intoxicating liquors contained therein, and praying that the said intoxicating liquors be forthwith returned to him; that the same be suppressed as evidence; and that the State be precluded from introducing in the trial under said indictment any evidence based upon the said search and seizure.
SPEAKMAN, Judge, delivering the opinion of the Court:
The Court has fully considered the petition filed in this case. A careful reading of the case of State v. Chuchola, 2 W. W.Harr.(32 Del.) 133, 120 A. 212, 214, discloses that the majority of the Court in that case in arriving at its decision was not entirely controlled by reason of the fact that under the law of this State atthat time the intoxicating liquor in question was not property. This clearly appears from the following language in the opinion of the Chief Justice:
"The denial of the use in evidence of articles illegally seized might discourage, and to a great extent prevent, illegal seizures, but it does not seem to us to be a sufficient reason for excluding such evidence at the trial. If a man's property is seized without a warrant, illegally seized, the person making the seizure can be and ought to be punished for his unlawful act, but such act should not prevent the use of the thing seized in evidence, and certainly not if its possession constituted the crime charged."
Such being the case, the law relative to the application made in the present case cannot be distinguished from the law relative to the application made in the Chuchola Case. Therefore the petition of the defendant is dismissed.