Commercial Exchange Bank v. McLeod

Rothrock, Ch. J. ^ENT't'of" taren from person oí prisoner: offito retain1*1 property. On the thirty-first day of January, 1883, the plaintiff’ commenced an action against the defendant and others upon a promissory note. It was alleged in the petition that defendants had disposed of their property in part with intent to defraud their creditors, and a writ of attachment was Prayed for and issued, which was placed in the hands of the sheriff for service. The plaintiff is a partnership, and H. P. Kirie and I. R. Kirk are the individual members thereof. On the twenty-eighth day of August, 1883, said I. R. Kirk made and filed an information before a justice of the peace, charging the defendant with the crime of uttering a forged promissory note. A warrant was issued, and the plaintiff was arrested by a constable and taken to the county jail. Upon his commitment to the jail, the sheriff, who was the keeper thereof, proceeded to search the defendant’s person, and took therefrom one gold watch, one silver watch, and $480, in money, and, having the attachment and money and property all in his hands, he made [667] return that he had levied the attachment on the watches and money. Section 4212 of the Code provides: “He who makes an arrest may take from the person all offensive weapons which he may have about his person, and must deliver them to the magistrate before whom he is taken, to be disposed of according to law.” We do not think that an officer making an arrest is precluded by this statute from taking from the person of the prisoner any other property than “ offensive weapons.” An officer making an arrest, or a jailor upon committing a person to jail, may search him and take from him all property which might be used by the prisoner in effecting an escape. In Reifsnyder v. Lee, 44 Iowa, 101, the defendant stole five head of cattle, and sold them to the plaintiff for $162.30. The owner of the cattle claimed and recovered them from plaintiff, and the plaintiff procured officers to pursue and capture the thief. The officers making the arrest searched his person, and took therefrom certain money, and a watch which was of little value. It was held that the money and watch were liable to garnishment in the hands of an officer at the suit of plaintiff. In that case the search of the person was fully approved. It. is said, however, in the opinion, that “a party to a suit can gain nothing by fraud or violence under the pretense of process, nor will the fraudulent or unlawful use of process be sanctioned by the courts. In such cases parties will be restored to the rights and position they possessed and occupied before they were deprived thereof by the fraud, violence or abuse of legal process.” To the same effect, see Pomroy v. Parmlee, 9 Iowa, 140, and Patterson v. Pratt, 19 Id., 358. We think the sheriff was justified in making the search, and in taking from the person all money or property which was in any way connected with the crime charged, or which might serve to identify the prisoner. If, however, the sheriff knew that the watches and money were in no manner connected with the crime, and that they could not be used in [668] any way as evidence in the prosecution, we think it was his duty to return them to the defendant. If a constable or other officer takes possession of property found on a prisoner, the court will order the same to be restored, if not required as a means of proof at the trial, or which does not finally appear to be the fruits of the crime with which he stands charged. 1 Archib. Crim. Pl. and Pr., 34, 35. In the case of Reifsnydar v. Lee, supra, it is said, there was “ ample ground to hold that the money taken from Lee was the money which he had procured from plaintiff for the stolen cattle.” eonsmrtof notramounf-s mg to. In the case at bar, it is not claimed that the sheriff had any right to retain the money and watches for any purpose connected with the arrest or with the crime charged, It is claimed, however, that the defendant con-rented that the sheriff might take possession of the same and keep them for him. This is denied by the defendant, and there was a conflict of evidence upon this point, and it cannot be said that the court was not warranted in finding that the property and money were taken without the consent of defendant. Where a party submits to a search of his person by an officer, it cannot be said that the search was with his consent, because he makes no physical resistance; and, when the search is completed and the fruits thereof are retained by the officer, it would require a strong showing to hold that this was with the consent of the prisoner. We think that it cannot be said that the search was unlawful. But when it was ascertained that the money and property were in no way connected with the offense, charged, and were not held as evidence of the crime charged, the personal possession of the sheriff should be regarded as the personal possession of the prisoner, and the money and property should be no more liable to attachment than if they were in the prisoner’s pockets. To hold otherwise would lead to unlawful and forcible searches of the person under cover of [669] criminal process, as an aid to civil actions for the collection of debts. It does not appear that such was the purpose of the prosecution in this case, but the court was justified, in finding that the money and property were taken from the defendant by force and without his consent, and, as it is not claimed that the money or property was in any way connected with the crime charged, no advantage should be taken of the defendant because the same was taken from his person by force and against his will. Affirmed.