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agreed to in the outset. If after be- found they were, to commence immeginning work the plaintiff had been diately." asked how long he was hired for, he It is not the legal effect of a conwould have answered for one year; tract in which no time is stipulated if asked from what time, he would for the commencement of service that have answered from August 27; if the services might not commence imfurther asked when he was hired, he mediately, but must commence at would have answered August 20; and some future reasonable time. Ibid. by these answers he would have cor- In Cole v. Singerly (1883) 60 Md. rectly disclosed the true character of 348, a person who was negotiating for the contract." The court distin- the purchase of a mill said to one in guishes the case from Russell v. Slade charge of the mill, "If I buy this mill (1837) 12 Conn. 455, and says it is

I will employ you to take more nearly similar to Snelling v. charge of it for a year, and will pay Huntingfield (1834) 1 Cromp. M. & R. you $1,000 a year”-a proposition 19, 149 Eng. Reprint, 976, 4 Tyrw. which the person claimed to have ac606, 3 L. J. Exch. N. S. 232, as to which cepted. The court says that, treating see supra.

this as a perfect contract entered into In Rease v. Clarksville Cotton Oil by the parties on the day of the conCo. (1923) Tex. Civ. App. 248 versation, the remedy thereon is not S. W. 434, an oral contract for a barred by the Statute of Frauds and year's services under which the em- can be enforced, since the employer ployee was to begin work as soon as might have purchased the mill within he got ready, which appears to have an hour of the utterance of the words. been about three weeks after the con- In that event, the contract being a tract was made, was held invalid be- perfect contract, the services could cause not in writing. According to have been performed within a year. the court: “This contract was, by A contract for a year's employits terms, for a year's service; per- ment, the time for the commencement formance to begin at a future time, of which was left uncertain because appearing in the facts to be on August the employee could not then tell when 23, 1920. The contract, as seen by its he could obtain a release from another terms, is not capable of entire and contract, is not invalid under the complete execution within

year Statute of Frauds because not in from the date of the making of it,' writing, because the employee might because the period of service agreed have obtained a

have obtained a release from his upon was to extend one year from the former employer on the day of the time 'performance commenced.'” signing of the contract. Baltimore

The facts in the cases which sus- Breweries Co. v. Callahan (1895) 82 tain the oral agreement are varied. Md. 106, 33 Atl. 460. It is further

In Russell v. Slade (Conn.) supra, held not to be brought within the stata contract by which one of the par- ute by the fact that after the contract ties agreed to employ the other in a was entered into the employee ascerwoolen factory in the business of tained, and so informed the employer, spinning, assorting, and carding wool that he could not begin his services for the term of one year, in which no until six days thereafter. time was stipulated for the commence- The court in A. B. Smith Co. v. Jones ment of the service, the court, in (1897) 75 Miss. 325, 22 So. 802, said: holding the oral contract not invalid "This contract of employment was under the Statute of Frauds, says: made on September 19, and was ca“There was no stipulation as to any pable of performance within twelve future time, nor was there anything months from the date of its making. in the nature of the contract which There is nothing to show that the forbade an immediate tender of the performance was to begin a week or plaintiff's services. The jury were a day after its making. The record is told that under these circumstances silent on that point, and we are not the services might, and they have to assume that there was a fraudulent

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intent on the part of the maker. The under the Statute of Frauds. Comes contract was one, according to the v. Lamson (1844) .16 Conn. 246. A view of the appellee, for twelve contract entered into in Chicago by months' service, and this view the which the employee was to enter the jury adopted. From the evidence of service of the employer at New Orappellee, he began on the 19th, the leans is invalid unless in writing, day of the making of the contract. He where the employee was not to enter says that with his employer he began the service of the employer until he to examine the books which he was to reached New Orleans, to which city keep under the supervision of that em- he went immediately after entering ployer, and that such examination was into the contract. Kleeman v. Collins suspended, at the suggestion of the (1872) 9 Bush (Ky.) 460. An oral employer, when the dinner hour ar- contract which contemplated that the rived. He made his first entry on the employee should first

employee should first construct a books the next day, the 20th, because road, purchase teams and wagons, and of his return to Greenville-as we thereafter haul lumber for a period of assume, with the consent of the em- one year, is invalid under the Statute ployer; but the first entry of the of Frauds, since it is clear that the books does not necessarily show when contract could not have been perthe employment actually began.” formed within a year from the mak

Where it is clear that the perform- ing thereof, on account of the requireance of the contract for the year's ment that a road should first be built services could not begin at once, or and teams procured. Union Sav. & T. within the time allowed by the rules Co. v. Krumm (1915) 88 Wash. 20, 152 stated in supra, II, and III., the oral Pac. 681. agreement is invalid.

An oral con- A contract for yearly hiring, to tract for services for one year, to commence at a future day not then commence upon the employee's return settled upon, is invalid under the from a trip he was about to make, Statute of Frauds, unless in writing. which would be in the course of a Strong v. Bent (1898) 31 N. S. 1. week or ten days thereafter, is invalid

W. A. E.

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Search - of automobile standing in highway validity.

1. The search of an automobile standing in a highway and seizure of liquor found therein without warrant for either the search or the arrest of the owner of the car violates the constitutional guaranty against unlawful searches and seizures.

[See note on this question beginning on page 709.] issuance of warrant - judicial dis- Constitutional law – applicability of cretion.

Federal Constitution to state ac2. The granting of a search warrant tion. is a matter for judicial determination, 3. The provisions of the Federal and not within the much more limited Constitution against self-crimination field of the discretion vested in ex- and unreasonable searches and seiecutive or administrative officers.

27 A.L.R.-43.

zures are not applicable to state ac- contrary to constitutional prohibition, tion,

is not admissible in evidence against [See 8 R. C. L. 78; 2 R. C. L. Supp. him over his objection. 536, 537; 28 R. C. L. 423.]

[See 8 R. C. L. 196; 2 R. C. L. Supp. Evidence — secured by illegal search 572; 10 R. C. L. 933; 2 R. C. L. Supp. - admissibility.

1112. See also note in 24 A.L.R. 4. Evidence obtained by illegal 1408.] search of the property of accused,

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ERROR to the Circuit Court for Racine County (Belden, J.) to review a judgment convicting defendant of unlawfully transporting intoxicating liquors. Reversed. Statement by Eschweiler, J.:

the office of the sheriff, and was Plaintiff in error, hereinafter des

then informed that intoxicating ignated as defendant, was prosecut- liquor had been found in the aued on an information charging him tomobile, and that it had been seized with violation of $ 1543 (3), Stat., knowledge of any such having been

on that account. He then denied by the unlawful transporting of intoxicating liquors in the city of Ra

in the car. He was arrested on the cine, November 24, 1921.

following day, charged as above At the time in question, defend

stated. ant, a resident of Racine, was the

Upon the trial, Deputy Sheriff owner of a Dort automobile, which

Lindstrum testified for the state had been left by him in a public

that he and one Kosterman, also a garage during his absence on

deputy sheriff, passed by the place hunting trip for about twelve days

of the accident about 6 P. M. on that prior to Sunday, November 24th, Sunday, and both stopped at the oththe day in question. He returned to

er car. Lindstrum then went alone Racine on the morning of that day

to the defendant's car. Neither had and first again used the automobile

any search warrant referring to at about noon, in returning a gun

this car or any warrant for the arwhich he had borrowed, to the sher

rest of anybody in connection thereiff of Racine county. He had placed

with

He also testified: “I went alcohol in the radiator. He with

on the south side of this car, and two friends drove around the city standing there I could smell someduring the afternoon. Between š thing funny. I happened to see a and 6 o'clock P. M., his automobile package in there. I went in the car, was injured in a collision with an

and I seen a package there. I other car. The radiator of his car

opened the door and went in and took fire immediately after the col

saw a package in the hole back of lision. The fire department was

the seat, and put my hand in there called and put it out, and then

and got hold of a broken bottle. moved the automobile about a half

There was no cover on the hole, a block, and it was left standing

which was about 10 by 14 inches. next the curb on a city street. The

I took out the broken bottle and defendant left and was gone about

looked it over. I thought it was one half hour, and was then in

eau de vie. I am familiar with the formed that his automobile was be

odor of intoxicating liquors, and ing taken. He returned and found

could detect such when I observed that it was being towed away by them.” Deputy Sheriff Lindstrum, acting

He also testified on the prelimiunder instructions from the sheriff. nary examination, made a part of Defendant then protested against the record here, that the newspaper such action, but without avail. Lat- bundle in question was not sticking er in the same evening he called at out, but was jammed down in the

( Wis. - 193 N. W. 89.) compartment, and that at this time back of the automobile in which the he went all through the car.

bottles were found were closed at The other deputy, Kosterman, the time he left the automobile afttestified that, upon being called over er the collision. The two persons to defendant's car by Lindstrum, he with him during the afternoon also received the broken bottle and then so testified. stepped on the running board of the The defendant was found guilty, car and reached in and pulled out and July 17, 1922, sentenced to the four other bottles from a little open house of correction in Milwaukee pocket back of the seat; that he de- county for ninety days. Subsequent tected an

unusual odor there, thereto an order was made directing smelled like eau de vie, the nation- the sale of the automobile so seized al drink of Denmark. The testi- by the officers. Thereafter defendmony was undisputed that the five ant sued out this writ of error. bottles contained gin, with an ex

Messrs. Foley & Brach, for plaintiff cess of alcohol.

in error: Prior to the hearing on the pre- Defendant's motion asking for the liminary examination the defend- return of the automobile seized under ant, upon his affidavit reciting his an illegal and unreasonable search, ownership of the automobile and its and his motion to suppress the evibeing on one of the public high

dence obtained under an unlawful ways, that the deputies Lindstrum

search and seizure should be granted. and Kosterman, without his consent

Adams v. New York, 192 U. S. 585,

48 L. ed. 575, 24 Sup. Ct. Rep. 372; and without authority, searched the

Weeks v. United States, 232 U. S. 383, said automobile and forcibly seized

58 L. ed. 652, L.R.A.1915B, 834, 34 and carried away from the same Sup. Ct. Rep. 341, Ann. Cas. 1915C, certain bottles or containers con- 1177; Veeder v. United States, 164 C. taining beverages therein, and C. A. 338, 252 Fed. 414, 246 U. S. 675, seized the said automobile; that all 62 L. ed. 933, 38 Sup. Ct. Rep. 428; such was an unlawful and unreason

Gouled v. United States, 255 U. S. 298, able search and illegal seizure and

65 L. ed. 647, 41 Sup. Ct. Rep. 261; without search warrant or warrant

Thornton v. State, 117 Wis. 338, 98

Am. St. Rep. 924, 93 N. W. 1107; for his arrest-all contrary to con

People v. Musk, Mich. 192 N. stitutional provisions; and that it

W. 485; United States v. Bookbinder, was proposed to use the articles so 278 Fed. 216; Bruner v. Com. 192 Ky. found as evidence against him in 386, 233 S. W. 795; Ex parte Jackson, the prosecution then pending, 263 Fed. 110; United States v. Wong moved the court commissioner for Quong Wong, 94 Fed. 832; Silverthorn an order requiring the return of

Lumber Co. v. United States, 251 U. S. the said automobile and the prop

385, 64 L. ed. 319, 24 A.L.R. 1426, 40 erty found or seized therein, and to

Sup. Ct. Rep. 182; Re Swan, 150 U. S.

637, 37 L. ed. 1207, 14 Sup. Ct. Rep. suppress all testimony obtained by

225; Ex parte Jackson, 96 U. S. 727, reason of such unlawful search and 27 L. ed. 877; People v. Foreman, 218 seizure. No counter affidavits were Mich. 591, 188 N. W. 375; Helton v. presented.

Com. 195 Ky. 678, 243 S. W. 918; Ash This motion was denied by the v. Com. 193 Ky, 452, 236 S. W. 1032; court commissioner. The defendant United States v. Slusser, 270 Fed. 818; was bound over after a preliminary Hughes v. State, 145 Tenn. 544, 20 examination, and before trial again

A.L.R. 639, 238 S. W. 588; Caffinni v. renewed the same motion, which

Hermann, 112 Me. 282, 91 Atl. 1009; was again denied. Upon trial, the

Douglass v. State, 152 Ga. 379, 110 S. defendant challenged the use of any

E. 168; State v. One Hudson Cabriolet such evidence on the same grounds.

Auto. 116 Misc. 399, 190 N. Y. Supp.

481; Stanley V. State, 82 Okla. 294, The defendant denied any knowl

200 Pac. 230; Carey v. State, 206 Ala. edge of the fact of liquors being in

351, 89 So. 609; Tillman v. State, 81 said automobile, and testified that

Fla. 558, 88 So. 377; People v. Case, the covers on the openings on the Mich, ---, post, 686, 190 N. W. 289;

-, 190

People v. De Cesare, Mich.

is a matter for judicial determinaN. W. 302; United States v. Fenton, tion, and not within the much more 268 Fed. 221; Boyd v. United States, limited field of the discretion vested 116 U. S. 616, 29 L. ed. 746, 6 Sup.

in executive or administrative ofCt. Rep. 522; Gouled v. United States,

ficers. State v. Peterson, 27 Wyo. 255 U. S. 298, 65 L. ed. 647, 41 Sup. Ct. Rep. 261; Amos v. United States, 255

185, 13 A.L.R. 1284, 194 Pac. 342, U. S. 313, 65 L. ed. 654, 41 Sup. Ct.

and the many authorities in that Rep. 266; United States v. Rykowski, case cited. The search and seizure 267 Fed. 866; United States v. Bush, in this case was, upon the facts 269 Fed. 455; United States v. Kraus, presented, without sufficient war270 Fed. 578; United States v. Kelih, rant in law, and therefore unlaw272 Fed. 484; People v. Marxhausen, ful. 204 Mich. 559, 3 A.L.R. 1505, 171 N.

Notwithstanding this, the evi- . W. 557; State v. Peterson, 27 Wyo.

dence thus procured was received, 185, 13 A.L.R. 1284, 194 Pac. 342; You

and there is for consideration the man v. Com. 189 Ky. 152, 13 A.L.R. 1303, 224 S. W. 860; State v. Sheri

presently much-vexed question dan, 121 Iowa, 164, 96 N. W. 730. whether a trial court, when chalDefendant's motion for a new trial

lenged as here, shall halt in the trial should have been granted.

sufficiently to determine whether or United States v. Slusser, 270 Fed. not evidence offered by the state 818; Carey v. State, 206 Ala. 351, 89 against a defendant charged with a So. 609; 16 C. J. 1178; Lonergan v. crime has been obtained by the offiState, 111 Wis. 453, 87 N. W. 455;

cers of the state by unlawful means, Prinslow v. State, 140 Wis. 131, 121 N. W. 637; B v. State, 166 Wis.

and particularly if in violation of 525, 166 N. W. 32; Kuhl v. State, 167

rights secured to the defendant by Wis. 495, 167 N. W. 743.

constitutional guaranties, and, if Messrs. Herman L. Ekern, Attorney

found to have been so obtained, reGeneral, Thorwald M. Beck, J. A. ject it. Simpson, and G. E. Smalley for the The constitutional provisions parState.

ticularly relied upon by defendant, Eschweiler, J., delivered the opin- so far as material, are as follows: ion of the court:

Article 1, § 8. “No person Defendant's uncontradicted affi

shall be compelled in any criminal davit, used before the preliminary

case to be a witness against himexamination and again before trial,

self.” disclosed that the

Article 1, § 11. “The right of the Searchmobile standing automobile and the people to be secure in their persons, in highway- five bottles of liquor houses, papers and effects against yalidity.

were possessed by unreasonable searches and seizures the officers as the result of an un

shall not be violated; and no warlawful search and seizure, and such

rants shall issue but upon probable should have been so held as a matter cause, supported by oath or affirmaof law. When the same question is tion, and particularly describing the considered in connection with the place to be searched and the persons testimony given by the deputy sher- or things to be seized.” iffs on the preliminary examination, Section 8 corresponds in suband again at the trial, the result is stance with article 5, and $ 11 is the same. Under their testimony identical with article 4, respectivethe situation presented to these of- ly, of the Amendments to the United ficers at the time they entered the States Constitution. Such Federal

automobile and took provisions are not -issuance of its contents was here asserted be. Constitutional

law-applicajudicial dis

one which, at the cause not concerned bility of Federal cretion.

most, might have with state action, justified the issuance of a search Minneapolis & St. warrant by a magistrate. The L. R. Co. v. Bombolis, 241 U. S. 211, granting of such a writ, however, 217, 60 L. ed. 961, 963, L.R.A.

warrant

constitution to state action.

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