Anderson v. State

192 Wis. 352 | Wis. | 1927

Doerfler, J.

Sec. 11 of art. I of our state constitution, which is identical with the constitutional provision contained in the federal constitution, requires, ámong other things, that “No warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”

It is contended by defendant’s counsel that the complaint is defective, first, because it did not specifically mention the village where the illicit liquor was claimed to be possessed by the defendant; and second, that it did not with sufficient particularity describe the place. The complaint properly alleged the county, but did not refer to the village.

The verified complaint, which forms the basis for the search warrant, should be couched in such language that the officer executing the warrant may identify the property to be searched, with reasonable certainty. It may be conceded that the complaint is neither a work of art nor a model pleading. Furthermore, it may also bé conceded that this court would be better satisfied if, instead of the description as incorporated in the complaint, the justice had gone into minute details by describing the property to be searched by metes and bounds, in view of the concession made by the district attorney that the legal description is by metes and bounds. But while justices of the peace are not ordinarily conversant'with the technicalities of the law in this state, they are constitutional officers, and are required to take an oath to support both the federal and state constitutions. Therefore, it must be assumed that they are familiar with the constitutional provisions on searches and seizures as contained in the fundamental law of the nation and of the, state. Facts may be alleged in a complaint which present to the mind a mental picture of premises, which in many instances may serve as a better basis for identification than even a legal description by metes and bounds. Physical facts may be incorporated in the complaint, referring to the general material of which a building is constructed; the color used in the paint of the building generally; the color of the blinds and the trimmings of the windows and doors; the location of the chimneys; the porch or porches on the structure; the stairs, if any, leading to the main entrance; and these and other details may not only identify a particular building to a reasonable certainty but to an absolute certainty. The names of the occupants of adjoining buildings are also oftentimes persuasive of identity, especially where the names of such occupants are unusual and odd. Aside from the foregoing, if the business of an adjoining occupant or occupants is also included, additional marks of identity are established; and over and above all, if the rooms in the building to be searched are set forth with reasonable certainty, together with attachments thereto, and if the complaint contains an allegation that in the buildings so described illicit liquors may be found, we have a description which, in our opinion, satisfies the calls of both the constitutional and statutory provisions. Nor is it necessary, by any means, that all of the earmarks above referred to be present.

The complaint was made beforé a justice of the peace in the village of Westfield, in Marquette county. The village itself is not named in the complaint, but notwithstanding the failure to name the village, the fact that the complaint was made before a justice whose office is located in the village is some indication that the premises are contained within the village in which the office of the justice is located. While lot 1 in block B is non-existent, the fact that the property described is in accordance with the description as contained in the tax roll is some evidence that the property is known by the tax description. There is but one block B in the plat of the village proper. Two other blocks are known as block B, in the plat of the additions to the village. Therefore, inas-much as the complaint does not refer to the additions to the village proper, the description is some evidence that the property intended to be searched is located in block B in the main plat of the village.

While it is conceded by the district attorney that the building described in the complaint consists of two separate buildings with a party-wall, the structures themselves present ‘ the appearance of one building, the north half being actually occupied by the defendant for the conduct of a public business, and the south half being occupied by Emil Mike. The name “Emil Mike” in itself constitutes rather a distinguishing feature for identification purposes by reason of its oddity and infrequency. Attached to the north part of the building is a shed, in which it is alleged in.the complaint illicit "liquors are stored. The existence of this shed and the finding of the illicit liquor therein, in addition to the other descriptive features, are so persuasive as to identify the premises almost to a certainty.

Under the circumstances, therefore, how can it plausibly be said that the complaint falls short of a description which identifies the premises with particularity or with reasonable cértainty ?

We approve of the law as laid down in People v. Lienartowics, 225 Mich. 303, 196 N. W. 326, where it is said: “Nice or technical descriptions are not required. A description pointing out a definitely ascertainable place in terms of reasonable certainty is sufficient.” See, also, People v. Flemming, 221 Mich. 609, 192 N. W. 625; Cornelius, Search and Seizure, p. 324, and authorities there cited.

The plea in abatement interposed by defendant’s counsel, based upon the contention that the defendant was not given the- benefit of a preliminary examination, is fully ruled in State v. Solomon, 158 Wis. 146, 147 N. W. 640, 148 N. W. 1095. The logic of the Solomon Case is so conclusive as to require no further comment herein. For the reasoning and holding in the Solomon Case we invite a reading of the opinion therein.

By the Court. — Judgment affirmed.