1. Under the Organic Act of Porto Rico, an accused person, is
entitled to have a copy of the information free of clerk's fees. P.
275 U. S.
109.
2. Refusal to furnish the copy free is harmless when the
accused, attended by counsel, waived the reading of the information
and pleaded not guilty. P.
275 U. S. 110.
3. Where evidence of a search and seizure of intoxicating
liquor, including the liquor itself, clearly proved defendants
guilty of illegal transportation, and was introduced without
objection to the search and seizure, refusal to require a police
officer on cross-examination to give the name of the person from
whom he obtained information leading to the search, and refusal to
sustain a motion to suppress the liquor as evidence upon the ground
that the search and seizure were illegal, were not prejudicial. P.
275 U. S.
111.
4. In a prosecution for transporting intoxicating liquor, the
objection that the liquor was obtained by a search and seizure
instituted without warrant or probable cause comes too late when
raised for the first time after the liquor has been offered in
evidence and admitted. P.
275 U. S.
111.
16 F.2d 563 affirmed.
Page 275 U. S. 107
Certiorari, 274 U.S. 729, to a judgment of the circuit court of
appeals which affirmed the conviction of the petitioners, in the
District Court of the United States for Porto Rico, of the offense
of transporting intoxicating liquors in violation of the National
Prohibition Act.
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This is a review of a sentence against the petitioners upon a
criminal information, filed in the district court of the United
States for Porto Rico, charging in the first count possession, and
in the second count transportation, of intoxicating liquors in
violation of the National Prohibition Act. The conviction on the
possession count was set aside by the circuit court of appeals, so
that only the second count is here involved. Upon arraignment,
petitioners waived a reading of the information and pleaded not
guilty. Their counsel thereupon requested that they be furnished
with a copy of the information free of charge. The request was
denied by the court and an exception noted, the trial court stating
that the defendants and their counsel were free to examine the
information and to make copies themselves, or have the clerk make
them on payment of his fee.
At the trial, Alfonso Ceballos, Chief of Police at Carolina,
Porto Rico, testified for the prosecution that, having received a
confidential telephone message that Segurola was driving a Buick
automobile with a load of liquor from
Page 275 U. S. 108
Luquillo to Loiza, he procured one Ismael Colon to drive him in
a Ford car out to a point on the road where he awaited the
appearance of the Buick machine; that, when that car appeared, he
tried to intercept it by obstructing the road with the Ford, but
Segurola operated his Buick so as to force the Ford aside, by
threat of a collision, and went by at high speed; that the officer
was in uniform, which Segurola must have observed; that he followed
in the Ford into Carolina, where, owing to obstacles encountered by
the Buick, he managed to get around in front of it and, when
Segurola saw his way blocked by the Ford, he stopped the Buick, put
it in reverse, and crashed into an electric wire post; that
Ceballos then arrested Segurola, as well as Santiago, who was
sitting beside him, and that a search by Ceballos of the rear
compartment of the Buick, which was a roadster, disclosed a number
of sacks containing bottles of whisky, brandy, and gin.
In the cross-examination, Ceballos was asked who gave him the
information by telephone. Counsel for the government objected
that
"they are the secrets of the police force, which should not be
stated in a court of justice, and the stating of the source of such
information would be against public policy."
The objection was sustained, and an exception noted. Evidence
was given of the alcoholic content of the liquor and the identity
of that examined with that seized. When the liquor was offered and
received in evidence, it was objected to on the ground that it had
not been properly identified, but the objection was overruled and
the liquor admitted. Thereafter, counsel for the defendants moved
to suppress the liquor as evidence on the ground that the search
was without a warrant and did not appear to have been made upon
probable cause, and also for the reason that, upon the issue of
probable cause, defendants were not permitted to cross-examine the
seizing officer as to the person from whom he
Page 275 U. S. 109
received by telephone the information which induced him to go to
look for the Buick car. The motion was overruled. No objection was
ever made to the evidence of the officers and others that liquor
was found in the car, and no evidence to dispute these facts was
offered by the defense. At the close of the trial, the jury found
the defendants guilty as charged, and the court sentenced them to
pay fines.
The case was carried upon writ of error to the Circuit Court of
Appeals for the First Circuit. 16 F.2d 563. That court affirmed the
judgment, holding that the refusal to furnish a copy of the
information without payment of a fee to the clerk was right and,
even if erroneous, was, under the circumstances, a harmless error;
that the refusal to permit cross-examination of the officer as to
his informant in respect to the coming of Segurola and the contents
of his car was in accord with approved public policy, and that the
circumstances constituted probable cause for a legal seizure.
The error assigned to the failure to direct the delivery of a
copy of the information rests on the second section of the Organic
Act of Porto Rico -- Act of March 2, 1917, c. 145, 39 Stat. 951,
U.S.C. Title 48, ยง 737 -- in which it is provided that,
"in all criminal prosecutions, the accused shall enjoy the right
to have the assistance of counsel for his defense, to be informed
of the nature and cause of the accusation, to have a copy thereof,
to have a speedy and public trial, to be confronted with the
witnesses against him, and to have compulsory process for obtaining
witnesses in his favor."
The district judge held that this did not mean that the
defendant was to have a copy of the information without paying the
regular copying fees to the clerk. We think this was an erroneous
construction of the statute. It was enacted by Congress to apply in
a country where there were two languages, and in which a
Page 275 U. S. 110
criminal procedure, new in some of its aspects, was to be put
into effect. It was not strange, therefore, that it was thought
necessary
ex industria to emphasize the means by which the
accused could be advised of the charge made against him. These
circumstances make the case of
United States v. Van Duzee,
140 U. S. 169,
140 U. S. 172,
relied on by the circuit court of appeals, inapplicable. The words
do not appear in the analogous provisions of the guaranty of the
rights of the accused in our Constitution. They should be given
some real effect, and the opportunity thus conferred to read the
charge upon which the accused is brought into court should not be
obstructed by the necessity for paying fees for its enjoyment. We
think, therefore, that the court was wrong in not directing that a
copy be furnished to each defendant. But that is very different
from saying that, because of the failure of the court to issue this
order, the trial which ensued should be held for naught, and a new
trial had. As a matter of fact, the petitioners, when attended by
counsel, waived a reading of the information and pleaded not
guilty, which was an indication that they already knew what the
information was and that they really suffered no prejudice which
would justify a new trial. We agree with the circuit court of
appeals in its conclusion that, in any view, the error was a
harmless one.
The questions which have been chiefly argued here are, first,
the correctness of the refusal of the court to allow the police
officer to be cross-examined as to the name of the person who
communicated to him the information that the defendants were
engaged in transporting liquor in a Buick car, and second, the
question of the existence of probable cause to justify the seizure
of the automobile under the circumstances shown.
We think that these two questions do not arise, and that the
judgment should be affirmed without regard to the proper answer to
them. The results of the search
Page 275 U. S. 111
and seizure were shown by the testimony of the chief of police
and of the other witnesses without any objection on behalf of the
defendants, and thus was disclosed the fact that the defendants had
been engaged in transporting a large amount of liquor in the Buick.
No motion was made to strike that evidence out, and no evidence was
introduced to contradict what was disclosed by the statements of
the chief of police and other witnesses upon this point. The only
objection made toward the close of the evidence for the government
was that, when it was proposed to introduce the liquor, it had not
been properly identified, but there was ample evidence to show that
it had. The motion made thereafter to suppress the liquor as
evidence, on the ground that there had been an illegal search, did
not include a motion to strike out the evidence of the witnesses as
to what occurred when the car was stopped. The objection to the
seizure was plainly an afterthought.
As there was no evidence introduced by the defendants to refute
or deny the testimony, unobjected to, which clearly showed the
illegal transportation of the liquor and sustained the verdict, the
admission in evidence of the liquor and the refusal to permit
cross-examination of Ceballos worked no prejudice for which a
reversal can be granted. Moreover, the principle laid down by this
Court in
Adams v. New York, 192 U.
S. 585, and recognized as proper in
Weeks v. United
States, 232 U. S. 383,
232 U. S. 395,
and in
Marron v. United States, post, p.
275 U. S. 192,
applies to render unavailing, under the circumstances of this case,
the objection to the use of the liquor as evidence based on the
Fourth Amendment. This principle is that, except where there has
been no opportunity to present the matter in advance of trial,
Gouled v. United States, 255 U. S. 298,
255 U. S. 305;
Amos v. United States, 255 U. S. 313,
255 U. S. 316;
Agnello v. United States, 269 U. S.
20,
269 U. S. 34, a
court, when engaged in trying a criminal case, will not take notice
of
Page 275 U. S. 112
the manner in which witnesses have possessed themselves of
papers or other articles of personal property, which are material
and properly offered in evidence, because the court will not, in
trying a criminal cause, permit a collateral issue to be raised as
to the source of competent evidence. To pursue it would be to halt
in the orderly progress of a cause and consider incidentally a
question which has happened to cross the path of such litigation,
and which is wholly independent of it. In other words, in order to
raise the question of illegal seizure, and an absence of probable
cause in that seizure, the defendants should have moved to have the
whisky and other liquor returned to them as their property, and as
not subject to seizure to use as evidence. To preserve their rights
under the Fourth Amendment, they must at least have seasonably
objected to the production of the liquor in court. This they did
not do, but waited until the liquor had been offered and admitted
and then, for the first time, raised the question of legality of
seizure and probable cause as a ground for withdrawing the liquor
from consideration of the jury. This was too late.
On behalf of Santiago, the companion of Segurola in the Buick,
it is urged that there was no evidence to justify his conviction,
and that his is a case of poor dog Tray. He accompanied Segurola
from Luquillo to Carolina and in the race of cars which occurred on
that trip. There were 188 bottles of liquor lying loose in eleven
sacks in a box back of the seat under him in the Buick. He could
hardly have been unconscious of their presence. The seizing officer
said that Santiago was present and saw the liquor as seized. But
Santiago testified that he didn't see the liquor and did not know
why he and his companion were being taken to the station. In view
of the jar of the collision of the Buick with the electric wire
post and the exciting race between the cars and the contradicting
evidence of the government witnesses, the jury evidently
Page 275 U. S. 113
thought that Santiago protested too much, and had destroyed his
credibility. We cannot say that there was no evidence to sustain
their verdict.
The judgment is
Affirmed.