| Mass. | Sep 15, 1873
This case comes before us on a motion to quash, which was overruled, and also on exceptions taken at the trial. We think the motion to quash was properly overruled, and that none of the claimants’ numerous exceptions can be sustained.
The complaint and warrant are not defective in failing to describe more fully the residence of Fletcher, one of the complainants. His residence was entirely immaterial upon any issue presented, and therefore need not be alleged or proved. His name and the allegation that he was of the county of Worcester were sufficient to identify him, so that he could be summoned in the warrant. Guenther v. Day, 6 Gray, 490. Commonwealth v. Taylor, ante, 1.
The place to be searched was designated with sufficient certainty to be identified, as required by the statute. St. 1869, c. 415, §§ 44, 46. It was alleged to be “ a certain grocery store, the cellar under the same, and the premises there situate, to wit* on the easterly side of Main Street, and numbered 375 on said street,” and occupied by the claimants. The principal objection, urged in connection with this description, is that there is a fatal variance between the allegation and the proof, it appearing in evidence that the grocery store and cellar, occupied by the claimants and numbered 375, were in a brick block four stories high, in which there were other stores and rooms occupied by other parties. A grocery store with a cellar under it may be a separate building, or a part of another building, and it is only necessary to describe the place itself, not its connections and surroundings. The description in the complaint and warrant is equally applicable to either kind of grocery store, if as part of a building it is properly designated. The proof that the store was numbered 375, and that the other stores in the same block had different
The objections that the liquors are not sufficiently described-that the officer’s return does not show that the liquors seized were the liquors described, or that they were found in the place described in the warrant, cannot be sustained. Commonwealth v. Intoxicating Liquors, 6 Allen, 596 ; 13 Allen, 52, 561; 97 Mass. 63" court="Mass." date_filed="1867-09-15" href="https://app.midpage.ai/document/commonwealth-v-certain-intoxicating-liquors-6414985?utm_source=webapp" opinion_id="6414985">97 Mass. 63.
The claimants at the trial asked the court to rule that the effect of delivering to Schlesinger & Blumenthal the liquors belonging to them was to annul the whole proceeding. This delivery was made upon the written representations of the claimants that they did not own those liquors, but that Schlesinger & Blumenthal did. The officer had the right to decline to seize, or having seized, had the right to deliver up liquors not named in the warrant, and not kept or deposited for sale contrary to law. The court, under the St. of 1869, c. 415, § 53, would upon proof have ordered the same to be delivered to the persons entitled to receive it. The effect of the letter written by the claimants was to admit a fact which justified the officer in making the delivery, of which they cannot now complain.
The point taken at the argument, that a portion of these liquors, so delivered,/were included in the verdict, was not raised at the trial, or called to the attention of the presiding judge, and we have not considered it.
The claimants further contend that the seizure of the bay water rendered the whole seizure illegal, and that the officer thereby became a trespasser ab initio, and that a forfeiture under the statute cannot be founded on a trespass. Without considering how far in seizures of liquor under the statute, an original wrongful intent may be inferred from a subsequent act of the officer, it is very clear that upon principle the facts here cannot make the officer a trespasser ab initio as to the whole property seized. Where an officer under legal process seizes several separate articles, some of which he can lawfully seize and some not, the
Afterwards in the Superior Court the claimants moved in arrest of judgment for the following reasons:
" Because the Central District Court of Worcester received the complaint and issued the warrant of search in said case without it appearing that there was probable cause to believe the complaint to be true:
“ Because the jurat of the complaint does not show or contain the averment that it appears to the court that there is probable cause to believe the complaint to be true:
“ Because the notice required by the court under section 56 of chap. 415 of the Statutes of 1869 was not made returnable to the term of the Superior Court to be held in said county next after the expiration of fourteen days from the time of issuing said notice:
“ Because the Superior Court in said county, held at Fitchburg on the second Monday of August, is not the court before which said notice is made returnable, and had no jurisdiction thereof, and the claimants and all other persons interested have had no legal and sufficient notice for their appearance at this court:
“ Because the verdict is insufficient in law to sustain a judgment of forfeiture, in that said verdict does not find the liquors referred to therein to be intoxicating; also in that said verdict does not find that the liquors referred to therein were kept and owned by the claimants for the purpose of being sold in this Commonwealth in violation of any specific provision of law; and the finding in this respect also is fatally indefinite and uncertain, in that in other respects the said verdict is insufficient in law and does not find the facts in issue:
*22 “ Because the record of the Central District Court in said case transmitted to this court shows that it was ordered by said District Court, (in the opinion of the court the value of the liquors seized and vessels containing same exceeding $20,) that a notice be issued to the said Chase and said Dwinnell and all other persons claiming an interest in the said liquors and vessels, sufumoning and commanding them and each of them to appear before the Superior Court of Worcester, in said county, on the second Monday of August, A. D. 1873, then and there to show cause, if any they have, why said liquors and vessels should not be forfeited; and said record shows that said notice was duly issued, and the claimants say that no such court or term of court existed, and that upon this record and notice the Superior Court held- at Fitch-burg within and for said county on the second Monday of August, A. D. 1873, had no jurisdiction of the case and could acquire none:
“ Because upon the complaint, warrant, and record and proceedings of the court below, all of which are insufficient in law, this court hath no jurisdiction in this case.”
This motion was overruled by Dewey, J., and the claimants alleged exceptions, which were argued at September term, 1874, by
F. P. Goulding, for the claimants.
C. R. Train, Attorney General, for the Commonwealth.
Endicott, J. The jurat need not contain the allegation that probable cause has been shown for issuing the warrant; and the warrant in this case does contain a sufficient allegation that probable cause for issuing has been shown. These points were decided in Commonwealth v. Intoxicating 'Liquors, 110 Mass. 182" court="Mass." date_filed="1872-10-15" href="https://app.midpage.ai/document/commonwealth-v-intoxicating-liquors-6416947?utm_source=webapp" opinion_id="6416947">110 Mass. 182.
The notice required by St. 1869, c. 415, § 56, was issued July 26, served July 28, and was- returnable before the Superior Court to be holden at Fitchburg on the second Monday of August following, which was August 11. This was the first term of the court next after the expiration of fourteen days from the time of issuing the notice. The notice being in due form, and properly served, the court holden at Fitchburg had jurisdiction. The defects in the copies of the record and the precept to the officer do
The verdict finds that the liquors described in the complaint, and seized on the warrant, were owned and kept in the premises as alleged in the warrant for the purpose of being sold in violation of St. 1869, c. 415. This identifies them as certain intoxicating liquors owned and kept for sale contrary to law, so that the court could render judgment. St. 1869, c. 415, § 51. Commonwealth v. Blanchard, 105 Mass. 173" court="Mass." date_filed="1870-10-15" href="https://app.midpage.ai/document/commonwealth-v-blanchard-6416150?utm_source=webapp" opinion_id="6416150">105 Mass. 173.
The other questions raised in the motion, not having been argued, have not been considered by the court.
Exceptions overruled.