[45 Del. 575] Henry A. Wise, Jr., of Wilmington, for Plaintiff in Error.
Joseph H. Flanzer, Deputy Atty. Gen., for Defendant in Error.
HARRINGTON, CH., TERRY, CAREY, JJ., SEITZ, V. CH. and WOLCOTT, J., sitting.
WOLCOTT, Judge, delivering the opinion of the majority of the Court:
[45 Del. 576] The plaintiff in error, hereinafter called the defendant, was convicted at the March Term, 1948, of the Court of General Sessions of New Castle County, of having driven an automobile while under the influence of intoxicating liquor. He seeks review of his conviction both by Writ of Error and Writ of Certiorari. Since the reasons urged for reversal are more consistent with review by Writ of Error, we will assume that the defendant has elected to proceed under that Writ.
Without stating the facts in detail, it will suffice to say that the defendant, driving his car on a highway of this state, drove it into the rear of a truck then parked on the side of the road. He then drove his car to a position in front of the truck and on the side of the highway, spoke to the owner of the truck, went into an adjacent woods for a distance of about fifty feet and went to sleep. A state police officer who arrived at the scene about half an hour later found the defendant asleep in the woods and arrested him without a warrant. He was retained in custody until the following morning when he was taken before a magistrate. While he was in custody, he was questioned and observed. The only testimony offered by the State of his intoxicated condition is that of the police officers who testified as to what the defendant did while in custody, his general condition and the strong odor of alcohol on his breach. 
Counsel for the defendant, in his brief, has presented three questions for our decision. The first two of these are in substance the same. These two assert that the evidence on which the State sought to convict is so conjectural and speculative that the offense was not proved beyond a reasonable doubt. We have reviewed the record and are satisfied that the State's case is [45 Del. 577] sufficient to support the conviction if the testimony of the police officers was properly before the jury for its consideration.
The third contention of the defendant is stated in his brief in the following language: 'Should a man be deprived of his liberty unlawfully, compelled to perform acts, and the evidence thus obtained used as the sole basis to convict him?'
It does not clearly appear in the record that the precise argument defendant's counsel is making here was made at the trial. An objection on similar grounds was made during the taking of the testimony of a doctor testifying for the State. That objection was overruled, but the ruling could not have prejudiced the defendant since the doctor testified that from his examination made some time after the arrest he could not express an opinion as to the sobriety of the defendant. No objection, however, was made during the course of the testimony of the police officers upon which, in our view, the conviction must stand or fall.
It was not until the close of the trial that counsel for the defendant, through the medium of a motion for a directed verdict of acquittal, interposed any objection to the testimony of the police officers. Even then, the reasons assigned in support of the motion were not the same precisely as those now urged before us. At the trial below, the argument was based upon Section 5173, R.C.1935, which makes it a felony to arrest without a warrant unless certain conditions subsequent are followed. The argument made in support of the motion was in substance that the jury was not entitled to believe the testimony of a witness who, it was contended, obtained his knowledge while committing a felony.
At no time during the trial was there a clear objection based upon the proposition that illegally obtained evidence is inadmissible for any purpose because of the constitutional guarantees against illegal search and seizure and against self-incrimination. However, this proposition was apparently in the mind of the Trial Judge [45 Del. 578] because defendant's motion for a directed verdict was overruled on the authority of State v. Chuchola, 2 W. W. Harr. 133, 120 A. 212, a prior ruling of the Court of General Sessions on that point.
Ordinarily, appellate courts will not consider questions which have not been fairly presented to the court below. We think this is the proper rule, and we further think the question presented to us was not fairly presented below, nor were the usual exceptions made to preserve the defendant's right to raise the question by Writ of Error. However, the rule, that matters not presented at the trial may not be raised on review, is subject to two exceptions--(1) when the question is one of jurisdiction of the subject matter, and (2) when a question of public policy is involved. Cf. Walter v. Keuthe, 98 N.J.L. 823, 121 A. 624. Since the defendant seeks to raise here a question of the application of certain constitutional guarantees which has never been passed on by this Court, we are constrained to permit him to do so under the public policy exception to the rule, even though the objection was made below at best by implication.
The result, therefore, is that we are called upon to consider the broad question of the admissibility of evidence obtained by an alleged invasion of constitutional rights.
The defendant relies upon Section 5173, R.C.1935, to support his contention that the evidence given by the police officers was illegally obtained. That section provides in part as follows: 'If any person shall * * * arrest * * * any citizen of this State * * * unless such arrest shall be made upon legal process * * *, or unless such arrest be made to prevent a breach of the peace, or the commission of some crime * * *, or to detain a person where there is probable cause to believe he has recently committed a crime and that without such arrest he would escape justice, and in all cases where arrests shall be made to prevent a breach of the peace or the commission of some crime [45 Del. 579] * * * the person or persons so ...